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Ram Saroop Ram Nath Vs. Shikhar Chand Jain - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 83 of 1978
Judge
Reported inAIR1984Delhi143; 1984(6)DRJ28; 1984RLR35
ActsCode of Civil Procedure (CPC), 1908 - Sections 148
AppellantRam Saroop Ram Nath
RespondentShikhar Chand Jain
Advocates: Y.K. Jain and; M.L. Lonial, Advs
Excerpt:
.....of kishan chand the partner of the plaintiff was recorded and remaining evidence was closed as list of witnesses had not been tiled. application under order 18 rule 17-a was rejected. discretion under section 148 was also not exercised.; that shutting out almost completely a party's evidence at an early stage looks like throttling the right to seek justice. order of trial court set aside. - - shutting out almost completely a party's evidence and that too at an early stage of a case looks like throttling that party's right to seek justice from the court of law and this is what appears to have happened in this case and the learned trial court in the matter of exercising its discretion under section 148 of the code of civil procedure in a judicial manner was completely led astray and..........alleged to have been purchased by the defendant-respondent. issues were framed in the case by the learned trial court on may 5, 1977 and the case was adjourned to august 17, 1977 for the evidence of the plaintiff-petitioner. the evidence was not recorded on that day and the case was again adjourned to september 29, 1977 on which day the statement of kishan chand, the partner of the plaintiff-petitioner, was recorded and the remaining case of the petitioner was closed as the list of witnesses filed by the petitioner had not been filed within the permitted period of 15 days from the striking of issues. the petitioner thereafter made an application under order 18 rule 17-a and section 151 of the code of civil procedure for permission to produce his evidence as additional evidence alleging.....
Judgment:

Jagdish Chandra, J.

(1) In this civil revision the plaintiff-petitioner assails the impugned order dated January 17, 1978 passed by Shri M.S Rohilla, Sub Judge, Delhi whereby the petitioner's prayer for the production of witnesses was disallowed and the application in that regard was dismissed with costs.

(2) The petitioner had filed the suit for the recovery of a sum of Rs. 5,543.18 for the price of goods alleged to have been purchased by the defendant-respondent. Issues were framed in the case by the learned trial court on May 5, 1977 and the case was adjourned to August 17, 1977 for the evidence of the plaintiff-petitioner. The evidence was not recorded on that day and the case was again adjourned to September 29, 1977 on which day the statement of Kishan Chand, the partner of the plaintiff-petitioner, was recorded and the remaining case of the petitioner was closed as the list of witnesses filed by the petitioner had not been filed within the permitted period of 15 days from the striking of issues. The petitioner thereafter made an application under Order 18 Rule 17-A and Section 151 of the Code of Civil Procedure for permission to produce his evidence as additional evidence alleging that Kishan Chand. the suing partner of the petitioner-firm, had gone to Banaras in connection with business and remained there up-till May 30, 1977 and the list of witnesses was then filed on June 1, 1977. This application was resisted by the defendant-respondent.

(3) The learned trial court did not believe as correct the averments made in the application and did not find itself induced to grant any further opportunity to the petitioner to adduce its remaining evidence. The learned trial court did not even invoke the provision contained in Section 148 of the Code of Civil Procedure in favor of the petitioner for allowing him the production of remaining evidence observing that the discretion under Section 148 of the Code of Civil.Procedure should be exercised judicially and not at random, nor in favor of a person who is guilty of gross negligence on his part in complying with the statutory provision of law.

(4) Under Order 16 Rule I of the Code of Civil Procedure the court is to fix a date not later than 15 days from the date of the settlement of issues, during which the parties are to file in court a list of witnesses whom they propose to call for evidence. Under Sub-rule (3) of Rule 16 the court may for reasons to be recorded permit a party to call any witness other than those whose names appear in the list of witnesses if such party shows sufficient cause for the omission to mention name of such witness in the said list. Under Order 18 Rule 17-A of the Code where a party satisfies the court that after the exercise of due diligence any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just. Then under Section 148 of the Code it is provided that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

(5) Even though it may be difficult to disagree with the learned trial court in its finding doubting the truthfulness of the averments made by the petitioner in its application regarding its suing partner Kishan Chand remaining away at Banaras up to May 30, 1977as also the prayer under Order 18 Rule 17-A of the Code, yet I cannot see eye to eye with its exercise of jurisdiction under Section 148 of the Code. The aforesaid provisions of law are only procedural simply setting the procedure to be followed by the courts and the parties and the same are in no way intended to hamper or prejudice but to advance the cause of justice. As already pointed out above issues were framed in this case only on May 5, 1977 and even though the petitioner could not file the list of witnesses within 15 days as ordained it filed the same not very late but on June 1, 1977 and thus by no stretch of imagination can it be said that the filing of the list late by a few days was simply with the intention of gaining any appreciable time for the purpose of manoeuvring false evidence in support of its case. Further more, the plaintiff's testimony was recorded on September 9, 1977 which was the second date of evidence, the first date of evidence being August 17, 197.7 and after recording the testimony of the suing partner Kishan Chand the remaining evidence of the petitioner was closed by the learned trial court. It is not a case where a party produces a list of witnesses and then towards the fanged of the trial of the case seeks to bring in more witnesses and thereby to fill the omissions in the list of witnesses in which case it can be said reasonably that there was no due diligence or care on the part of that party or that that party intended to include those additional witnesses simply by way of manoeuvred evidence. Shutting out almost completely a party's evidence and that too at an early stage of a case looks like throttling that party's right to seek justice from the court of law and this is what appears to have happened in this case and the learned trial court in the matter of exercising its discretion under Section 148 of the Code of Civil Procedure in a judicial manner was completely led astray and as a matter of fact the really judicial exercise of jurisdiction would have been-to give an opportunity to the petitioner to produce its remaining evidence as per its list of witnesses filed on June 1, 1977. In this view of the matter the revision petition is accepted and the impugned order dated January 17, 1978 of the learned trial court is set aside. There shall, however, be no order as to costs. Parties shall now appear before the learned trial court on October 25, 1983.


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