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Ram Saran and anr. Vs. Bansi Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCiv. Revn. No. 55 of 1953
Judge
Reported inAIR1954HP36
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 7, Rule 18 - Order 13, Rule 2;
AppellantRam Saran and anr.
RespondentBansi Lal and anr.
Appellant Advocate I.D. Abrol, Adv.
Respondent Advocate Vidya Sagar, Adv.
Cases ReferredBibi Gurdevi v. Mahomed Baksh
Excerpt:
- .....the bonds werenot produced at the proper stage. in these circumstances, it cannot be said that the discretionexercised by the trial court in favour of allowingthe additional evidence to be produced was exercised arbitrarily. 7. there were two other cases cited by the learned counsel for the defendants-petitioners, i.e.,--'janki sahu trust v. ram palat', air 1950 all 580 (fb) (o); and--'mt. partaba v. ganga bux', air 1951 all 417 (p). it was laid down in the former that in exercising jurisdiction under its inherent powers the court is influenced by the justice of the case in favour of the party who invokes its assistance, and that where the party has been guilty of laches or has been negligent in prosecuting his remedy, the court of law would be most reluctant to exercise its inherent.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a defendants' application in revision against an interlocutory order passed by the Subordinate Judge of Mandi on 27-6-1952 whereby he allowed the plaintiff-respondent's application dated 12-6-1952 for production of additional documentary evidence.

The suit was for recovery of an amount alleged to be due on a bond said to nave been executed by Mt. Nardu, predecessor-in-interest of the present petitioners. The parties had closed their evidence on 26-5-1952, arguments were heard on 31-5-1952 & 13-6-1952 was the date fixed for pronouncement of judgment. The aforesaid application en behalf of the plaintiff was filed, as stated above, one day before the date fixed for pronouncement of the judgment, and the additional documentary evidence sought to be produced consisted of the previous bonds executed by Mt. Nardu since the time when she originally took the loan from the plaintiff.

2. The application purported to be one under Section 151, C. P. Code. It stated that the consideration of the bond in suit consisted of the amounts borrowed on a number of previous bonds, and that the plaintiff had succeeded in tracing those previous bonds only when the application, was filed. The application was supported by an affidavit.

3. The learned Subordinate Judge has remarked in his order, which is the subject-matter of the present revision, that the plaintiff failed to produce the bonds in question although a suggestion was thrown out by the Court while the plaintiff was adducing his evidence that he had to go back to the time when the debt was originally advanced. He has further remarked that the failure of the plaintiff to take the suggestion at the earlier stage appeared to have been due to the fact that the importance of the production of the earlier bonds was then not realized, or to the fact that the bonds in question would require payment of deficiencies and penalties of stamp duty. These latter remarks appear however to be in the nature of mere surmises since the bonds themselves were not produced with the aforesaid application of the plaintiff dated 12-6-1952 and these reasons do not appear in the application itself.

The ground on which the learned Subordinate Judge allowed the application was that the documentary evidence sought to be produced was not such as could be concocted, and he did so in exercise of his inherent powers under Section 151, C. P. Code, because he was of the view that there was no other specific provision of the Code under which the plaintiff could file the application for production of the additional evidence.

4. The learned counsel for the defendants-petitioners has cited a number of rulings in support of the proposition that inherent powers of the Court cannot be exercised in matters for which the statute has made express provision and in a manner calculated to defeat the statutory provision.

These were cases reported in the--'Muham-med Kassim Abdul v. Hajee Rahiman', AIR 1950 Trav-Co 100 (FB) (A);--'Jitendra Mohan' v. Bind Basni Kunwar', AIR 1945 Oudh 96 (B);--'Indu Bhusan v. Secy. of State', AIR 1935 Cal 707 (C);--'Amir Din v. Shiv Dev Singh', AIR 1947 Lah 102 (D);--'Debendra Nath v. Satya-bala Dasi', AIR 1950 Cal 217 (E);--'Motibhai Jesingbhai v. Ranchhodbhai Shambhubhai', AIR 1935 Bom 222 (P) and--'Mahomed Manjural Haque v. Bisseswar Banerjee', AIR 1943 Cal 361 (G). That proposition is unchallengeable and has not been challenged by the learned counsel for the plaintiff-respondent. But where the procedure to be adopted in a particular case is provided for by the statute and yet the Court invokes its inherent powers for the purpose of granting a certain relief, it ought to be seen whether in granting that irelief the Court has acted properly within the four corners of the statutory provision and Its order granting the relief should not be set aside merely on the ground that instead of acting on the statutory provision it has purported to invoke its inherent powers under Section 151, C. P. Code.

In the present case the relevant provisions of the Code for disposing of the aforesaid application of the plaintiff-respondent were Order 7, Rules 14 and 18 and Order 13, Rules 1 and 2. If the Court's order granting the application could be a good order within those provisions, it will be deemed to have passed the order in question in exercise of those statutory provisions, and it would be immaterial that he purported to do so under its inherent powers under Section 151, C. P. Code. In other words, all that can be said on foot of the authorities cited by the learned counsel for the defendants-petitioners is that the Court below was in error in invoking its inherent powers in passing the order in question, but not that it had no power at all to grant the plaintiff's application. That power was there under the aforesaid rules of Orders 7 and 13 of the Code, and all that has therefore to be seen is whether the Court below exercised a proper discretion in allowing the additional evidence to be produced at the said stage, even though that discretion may have been exercised by it in oblivion of the said statutory provisions.

5. There is no doubt that both Order 7, Rule 14 and Order 13, Rule 1 of the Code were transgressed, in that the documents sought to be produced were neither entered in a list to be annexed to the plaint nor produced at the first hearing of the suit. Neither of these omissions was however a complete bar to the production of the documents in question since despite the omissions the documents could be received in evidence by the Court below in exercise of the discretion vested in it under Rule 18 of Order 7 and Rule 2 of Order 13 of the Code. Under the former rule all that is laid down is that the leave of the Court should be taken, while under the latter rule it is prescribed that good cause should be shown to the satisfaction of the Court for the non-production of the documentary evidence in question at the first hearing.

In this connection the learned counsel for the defendants-petitioners cited the following three rulings.--'Dasaundhi Khan v. Mst. Rabian Bibi', AIR 1935 Lah 648 (H);--'Vijiaraghavalu v. Rajamani', AIR 1931 Mad 512 (I) and--'Prithwi Chand Lal v. Sm. Oramba Sundari Dasi', AIR 1949 Pat 338 (J). The first was a case where certain documents were sought to be produced by the plaintiffs after the conclusion of arguments, and the trial Court rejected the application. In first appeal the High Court held that since it had not been shown that the party could not have produced the document at the proper stage despite exercise of due diligence, and since no other reason was given for its non-production before he closed his case, the trial Court acted rightly in exercise of its discretion in rejecting the application.

In the Madras case, which was a revision from an interlocutory order refusing to receive documents filed six months too late, the revision was dismissed on the ground that the provisions of Order 13, Rules 1 and 2 of the Code were peremptory. The question of whether the trial Court had or had not properly exercised its discretion under rule 2 was not considered.

In the Patna case, a revision against an order of remand by the lower appellate Court to give a second chance to a party to adduce additional evidence was allowed on the ground that such an opportunity should not be given to a party who with open eyes had failed to adduce that evidence was allowed on the ground that such of the law that once the matter has been fairly tried between the parties it should not, except in special circumstances, be reopened and retried.

Here there is no question of any remand, and it cannot be said that the matter had been already tried between the parties since, although arguments had been heard and only judgment remained to be delivered, the case had not been decided. It would appear from a perusal of at least two of these three cases cited by the learned counsel for the defendants-petitioners that wha.t has to be seen is whether in the particular circumstances of a case the discretion vested in the trial Court in regard to the granting of permission to adduce additional evidence has or has not been properly exercised. And in this connection it is pertinent to refer to the view expressed by their Lordships of the Privy Council in--'Kanda v. Waghu', AIR 1950 PC 68 (K), cited by the learned counsel for the plaintiff-respondent. Say their Lordships:

'When admitting public records at a late stage, the Court has a discretion, and while generally speaking it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances.'

It will appear that two propositions have been laid down by their Lordships: one that the admission of documents at a late stage by the trial Court is a matter within its discretion which must be exercised in each case in the light of the particular circumstances, and the other that generally speaking it will be a wise exercise of the discretion to admit such evidence.

The documents in that case were public records, but the same principle will apply where, as in this case, the trial Court thought that the documents sought to be produced were not such as could be concocted.

6. There were three other cases cited by the learned counsel for the plaintiff-respondent bearing on the question of the discretion of the trial Court in admitting additional documentary evidence at a late stage of the case, i.e.,--'Naraini Koer v. Gena Missir', AIR 1929 Pat 324 (L);--'Jagdip Pandey v. Mt. Taibunnissa', AIR 1924 Pat 208 (M) and--'Tripura Modern Bank Ltd. v. Sushil Chandra', AIR 1953 Assam 40 (N) (which follows the two Patna cases). It was laid down in these cases that where a document has an important bearing on the question at issue and there is no ground for supposing that it has been forged or fabricated, the Court should allow it to be produced at a late stage though not produced, at the first hearing through inadvertence or without mala fides.

In the present case, there is no doubt that thebonds in question had not been filed along withthe application, but there could be no apprehension as to their being forged or fabricated sinceit was alleged that they had been executed by Mt.Nardu. In any case, their genuineness, if doubted,was capable of being challenged. Apart from thatno mala fides can be, or in fact has been, attributed to the plaintiff. All that appears is thatowing to improper legal advice the bonds werenot produced at the proper stage. In these circumstances, it cannot be said that the discretionexercised by the trial Court in favour of allowingthe additional evidence to be produced was exercised arbitrarily.

7. There were two other cases cited by the learned counsel for the defendants-petitioners, i.e.,--'Janki Sahu Trust v. Ram Palat', AIR 1950 All 580 (FB) (O); and--'Mt. Partaba v. Ganga Bux', AIR 1951 All 417 (P). It was laid down in the former that in exercising jurisdiction under its inherent powers the Court is influenced by the justice of the case in favour of the party who invokes its assistance, and that where the party has been guilty of laches or has been negligent in prosecuting his remedy, the Court of law would be most reluctant to exercise its inherent powers in his favour. In the other case it was laid down that the inherent jurisdiction is exercised in the interests of justice generally in cases where there is no other remedy open and not where although a remedy is open it is not availed of within the time prescribed by law.

The principle enunciated in these cases does not however fall to be considered in the present case since, as adverted to above, the jurisdiction exercised by the trial Court in allowing the plaintiff-respondent's application, though ostensibly exercised under Section 151 of the Code, will in reality be deemed to have been exercised under the provisions of Order 7, Rule 18 and Order 13, Rule. 2 of the Code. It may also be stated here that there was no question in the present, case of the plaintiff-respondent having filed the said application after the expiry of any prescribed period of limitation.

8. Finally, there is one other important factor to be taken into account, and it is this that it cannot by any stretch of reasoning be said that any irreparable damage would be caused to the defendants-petitioners by reason of the additional documentary evidence in question being allowed to be produced by the plaintiff-respondent. It will be quite open to them to allege and prove any defence that they may have to put forward in respect of those bonds, e.g., that they are not bonds executed by Mt. Nardu, or that they were otherwise than for valuable consideration, or that they were forged and fabricated etc.

And when such is the case, it is common ground that interference by way of revision with an interlocutory order will not be justified. It is so laid down in--'Firm Makhanlal Tejpal v. Firm Jai Narain Brijraj', 59 Ind Cas 450 (Lah) (Q), cited by the learned counsel for the plaintiff-respondent, and that is also the view held by this Court in--'Sukh Ram v. Narainoo', AIR 1952 Him P & Bilaspur 38 (R), cited by the learned counsel far the defendants-petitioners. It was laid down in the latter case that where a Court passes an order without applying its mind at all to the correct provisions of the procedural law, and where the passing of that order has the result of creating an impossible situation, the Court will be deemed to have acted irregularly in the exercise of its jurisdiction, and there would, in the circumstance, be ample justification for the High Court to set aside the order in question in exercise of its revi-sional jurisdiction.

In the present case the correct provisions of the procedural law were no doubt not taken into consideration by the trial Court in allowing the plaintiff-respondent's application, but the passing of that order has not resulted, as in the reported case, in the creation of an impossible situation. Furthermore, that case purported to follow the Full Bench case of the Lahore High Court reported as--'Bibi Gurdevi v. Mahomed Baksh', AIR 1943 Lah 65 (S), wherein it was laid down that one of the conditions precedent to interference by the High Court in exercise of its revisional jurisdiction with an interlocutory order is that the order in question is likely to result in gross injustice or irreparable injury. It is thus clear that on the authority of the cases cited by the learned counsel for both the parties the likelihood of irreparable or irremediable damage being caused is a necessary condition for interference by the High Court with an interlocutory order in revision.

It cannot be said in the present case that any such irreparable injury is likely to be caused to the defendants-petitioners by reason of the additional evidence in question being produced, for, as stated above, they will be free to put forward any pleas that may be open to them against that documentary evidence and to adduce evidence in support of those pleas.

9. For reasons recorded above, the revision isrejected, but, in the special circumstances of thecase, I make no order as to the costs of thisrevision. The order of stay of proceedings in thetrial Court is hereby discharged.


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