Vishnudas v. Vasant

1 Heard Mr.A.S.Deshpande, learned Counsel for the petitioner and Mr.V.D.Gunale, learned Counsel for the Respondent. Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 An application tendered by the plaintiff – petitioner herein, after closure of his evidence, requesting the Court to permit him to examine the Post Master-cum-Postman from Kasarkheda Post Office, has been rejected by the trial Court in view of the order passed on 01.10.2011 and the said order, passed by the trial Court, is subjected to challenge in this writ petition. {2} wp885011.odt 3 The petitioner has presented suit seeking decree of removal of encroachment and for possession of the disputed property. During the course of recording of evidence, an application was tendered for measurement of the property through the Court Commissioner and T.I.L.R. was appointed as Court Commissioner to inspect and measure the disputed property and to submit report to the Court in accordance with the order passed by the trial Court.

The T.I.L.R. accordingly effected measurement after issuing notice to the parties and submitted report to the Court. During the course of examination of the defendant, he denied to have received the notice issued by the T.I.L.R. for remaining present at the time of inspection and measurement of the property. It is stated by the defendant, in his cross examination, that he did not receive the notice issued by R.P.A.D. by the Court Commissioner and the signature appearing on acknowledgement Exhibit-59 is not that of the defendant. 4 Since the defendant has denied his signature on the acknowledgement Exhibit-59, it became essential for the plaintiff to examine the Post Master/Postman with a view to prove his contention as regards service of notice. The plaintiff, therefore, after closure of his evidence, tendered an application for calling the Postmaster/Postman as witness for the purpose of examination.

The application, however, came to be rejected by the trial Court holding that the plaintiff has not exercised due diligence and tendered application only after closure of his evidence. It is also noted in the order that the plaintiff was aware that the defendant has disputed his signature on Exhibit-59, however, in spite of that, he has not approached the Court with due diligence. 5 Learned Counsel appearing for the petitioner has pointed {3} wp885011.odt out that the cross examination of the defendant at Exhibit-68 was concluded on 03.09.2011 and plaintiff tendered his application for calling the witness on 20.09.2011. There was no deliberate delay or any attempt to protract the litigation on the part of the plaintiff. Even otherwise, since the defendant has denied his signature on the acknowledgement receipt, it has become essential for the plaintiff to prove the factum of service of notice through Post to the defendant and in that view of the matter, it has become essential to examine the Post Master/Postman from Post office Kasarkheda.

6 I have perused the application as well as the impugned order passed by the trial Court. Reliance can be placed on the judgment in the matter of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, reported in AIR 2005 SC 3353. In para 14 of the judgment, it is observed thus: “14 In Salem Advocates Bar Association’s case, (AIR 2003 SC 189) it has been clarified that on deletion of Order XVIII Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1st July, 2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order XVIII Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order XVIII Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order XVIII Rule 17-A does not disentitle production of evidence at a later stage.

On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at {4} wp885011.odt the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just.” 7 It is to be noted that in spite of deletion of Rule 17A Order XVIII of the Code of Civil Procedure, the Court is invested with the power to permit the parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. In the instant matter, it cannot be said that the plaintiff was not diligent in tendering the application seeking production of evidence. The subsequent event namely denial by the defendant in respect of his signature on acknowledgement receipt at Exhibit-59 has necessitated the plaintiff to call the witness, namely Post Master-cum-Postman of the concerned Post Office.