Jagir Chand and Others vs Jagsir Singh and Others

N.K. Aggarwal, J.—This is a revision petition by the defendants against order dated April 23, 1998 passed by the Civil Judge (Junior Division), Fazilka, whereby the defendants'' application under Order 18, Rule 17-A Civil Procedure Code, has only been partly allowed.

The petitioner-defendants have filed an application u/s 5 Limitation Act, for condoning the delay in the re-filing of the present revision petition. The application is allowed for the reasons mentioned therein.

The plaintiff filed a suit for specific performance of agreement to sell dated July 5, 1989. This was regarding a bus with route permit. The relief of possession was also sought. Defendant No. 1 took the plea in his written statement that the suit was barred under Order 2, Rule 2, Civil Procedure Code. An issue was framed. The defendants could not earlier produce the certified copies of the plaint, written statement, memo of issues and judgment and decree dated November 21, 1990. It was stated by the defendants that those documents pertained to a suit filed before the Sub Judge, Muktsar, relating to a similar controversy based on the agreement in question. The institution of the earlier suit had been admitted by the plaintiffs. The application was, however, not allowed.

Learned counsel for the petitioner-defendants has contended that the trial Court only allowed the certified copy of the judgment and decree to be tendered in evidence. The other documents, namely, plaint written statement and the memo of issues were not allowed to be brought on record though those were very material documents. Further they were the certified copies.

Learned counsel for the respondent-plaintiffs has, on the other hand, supported the order of the trial Court with the plea that the defendants had earlier filed an application under Order 18, Rule 17-A on November 20, 1997. The application to amend the written statement was also filed on December 15, 1997. The defendants knew about the earlier suit. The documents now intended to be introduced in evidence had not been produced by the defendants due to sheer negligence. Ft is alleged that the application of the defendants was actually a device to prolong the litigation. All the documents except the certified copy of the judgment and decree shall have to be proved according to law and that would reopen the case.

Learned counsel for the respondent-plaintiffs has further argued that the revision petition is not maintainable. Reliance is placed on a decision of this Court in Surjan Singh v. Paras Ram (1994)108 P.L.R. 503. It has been held that revision against an order declining additional evidence is not maintainable as the order would not finally dispose of the suit even if the order would have been passed in favour of the plaintiff. Similar view has been taken in Om Parkash and Others Vs. Punjab State Tubewell Corporation Ltd., by holding that revision against an order dismissing the application for permission to lead additional evidence is not maintainable after amendment of 1997 in the Civil Procedure Code.

It may also be noticed that all the facts which the defendants now intend to introduce were within their knowledge and they were not prevented from producing the documents on an earlier date. In Buta Singh Vs. Gurmeet Singh and Others, it has been held that additional evidence cannot be allowed to be produced if all the facts were within the knowledge of the party.

Learned counsel for the petitioner-defendants has, on the other hand, argued that the suit was barred under Order 2, Rule 12, Civil Procedure Code, and, therefore, it was necessary to lead sufficient evidence in order to prove that plea. Reliance is placed on a decision of the Supreme Court in M/s. Bengal Waterproof Limited Vs. M/s. Bombay Waterproof Manufacturing Company and Another, .

It is also argued by the learned counsel for the petitioners that the rules of procedure are meant to be hand-maid to the administration of justice and, therefore, a substantive right cannot be defeated on account of procedural irregularity if it can be cured. In UCO Bank Vs. Yash Paul Gupta (Deceased) through his LRs., , it has been held that mere negligence of a party cannot be made a ground to defeat the cause of justice particularly when the order party can be compensated with the costs. In Surinder Kumar v. Prem Lata (1997) P.L.R. 291, it has been held that production of a document by way of additional evidence cannot be disallowed on the ground of negligence of the counsel. In Bishan Ram Vs. Surinder Singh, , it has been held that production of a relevant document should not be shut out merely because of delay, when the opposite party can be adequately compensated by the award of costs. In Sarwan Singh v. Nand Singh 1998(2) R.C.R. 500, similar view has been reiterated. Learned counsel for the petitioner-defendants has, therefore, submitted that the defendants may be permitted to lead additional evidence so as to prove the plea that the present suit was barred under Order 2, Rule 12, Civil Procedure Code.

On a consideration of the matter, it is noticed that the revision petition is not maintainable. This court has already taken a view that where additional evidence is declined to a party, a revision petition is not maintainable. On merits also, the present petition is found to have no substance. The trial Court has allowed the production of the certified copy of the judgment and decree. Other documents have not been allowed to be produced. No sufficient cause was shown for not producing these documents at the earlier stage of the suit. The case is now pending in the trial Court at the stage of final arguments. The documents were within the knowledge of the petitioner-defendants.

In the result, the revision petition is dismissed. No costs.