Ramotar v. Om Parkash & Ors.

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Suvineet Sharma, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.9752-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2414 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 4.3.2011, Annexure P4, passed by learned Civil Judge, Junior Division, Bhiwani, dismissing the application for leading additional evidence filed by petitioner-defendant. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that respondent-plaintiff had filed a suit for declaration to the effect that he is owner in possession of the property in dispute on the basis of a Will dated

25.8.2002, executed by his Shri Rameshwar Dutt Sharma, bequeathing away the property in dispute in favour of the plaintiff and that the defendants are having no right whatsoever in the said property. Suit was contested by respondents-defendants. Issues were framed. Evidence of both the parties was concluded when the present application for additional evidence was filed by petitioner-defendant, which was declined by learned trial Court by observing as under:- Civil Revision No.2414 of 2011(O&M) -2- “6.In the present case the applicants want to tender certified copy of judgment and decree dated 7.1.2002, a CD and a statement of present plaintiff in some other case. It is pertinent to mention here that defendants were given sufficient opportunities to lead evidence and after closing of their oral evidence they were given 4-5 effective opportunities for tendering documents, i.e., on 11.10.2010,

25.10.2010, 29.10.2010, 1.11.2010 and then on 3.11.2010. Despite 4/5 effective opportunities exclusively for tendering of documents the defendants/applicants have not produced the copy of judgment and decree dated 7.1.2002. It is not he case of applicants that earlier they were not in the knowledge of the said documents, as in the cross-examination of PW Rati Ram Numberdar, specific suggestions to the witness regarding the execution of said sale deed has been put by learned counsel for the applicants/defendants. The ground pleaded for additional evidence is inadvertence of the clerk/counsel, however, additional evidence cannot be merely allowed on the ground for inadvertence. The partly pleading for additional evidence has to show due diligence that despite best efforts he could not produce the requisite documents earlier. The present case is not that of an exercise of due diligence by the applicants, rather only inadvertence has been pleaded. It is further pertinent to mention here that earlier also the applicants/defendants had moved an application for additional evidence on 10.10.2010 which was dismissed vide order dated 21.10.2010 of this Court and in that application also the proposed evidence which the applicants now want to tender was not mentioned.

7. Further regarding the alleged CD there is no material on record to claim any authenticity of the said CD and in the absence of any proof of authenticity the same is not admissible in evidence per se. Further the same has not been put to PW Rati Ram Numberdar in his cross-examination and as such the same has not any evidentiary value at this stage. Civil Revision No.2414 of 2011(O&M) -3- Thus, it appears that by way of moving application the applicant has been playing delay tactics and in fact abusing the process of law. Therefore, the application in hand has no merit and the same is hereby accordingly dismissed.” A perusal of aforementioned order passed by learned trial Court shows that even 4-5 effective opportunities were granted to the petitioner to tender documents and, thereafter, his evidence was closed. Law has been well settled by Hon'ble Apex Court in Salem Advocate Bar Association,Tamil Nadu v. Union of India 2005(3) RCR (Civil) 530 that even after deletion of Order XVIII Rule 17 of the Code of Civil Procedure, additional evidence can be allowed only if plaintiff is able to show that the documents were not in his knowledge and that he could not produce the same at the time evidence was being led, despite due diligence. Relevant paragraph reads as under:- “14..... 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 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.” However, in the present case, it cannot be said that evidence could not be produced after due diligence or the same was not in the knowledge of the defendant. Rather from cross-examination of PW Rati Ram Numberdar, it is shown that a suggestion was put to the witness regarding execution of the sale deed. Moreover, the sale deed is regarding some other property and so far as alleged CD is concerned, it has been rightly observed by learned trial Court that there was no material on record to claim any authenticity of the same and moreover the same was not put to PW Rati Ram Numberdar in the cross examination. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of Civil Revision No.2414 of 2011(O&M) -4- supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

8.4.2011 (Ram Chand Gupta) Judge