Jagram vs Dilbagh Singh

Ram Chand Gupta, J.

C.M. No. 5963-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 1479 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 16.2.2011, Annexure P4, vide which application filed by Petitioner-Defendant for recalling of witness-Balwan Singh in order to prove and exhibit the receipt mark "A", Annexure P1, has been dismissed.

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.

It has been contended by learned Counsel for the Petitioner that he has taken the plea in the written statement that though he had taken loan from Respondent-Plaintiff and however the same was repaid in the presence of some witnesses. It is further contended that the receipt could not be proved earlier as the same was not traceable. Hence, it is contended that one opportunity may be given to Petitioner-Defendant to recall DW3-Balwan Singh, already examined, to prove the alleged receipt.

The facts of present case are that a suit for recovery of Rs. 46,188/-, i.e., Rs. 27,000/- as principal amount and Rs. 19,188/- as interest amount was filed by Respondent-Plaintiff against Petitioner-Defendant alleging that Petitioner-Defendant had taken a loan of Rs. 27,000/- on 9.6.2000 at the interest rate of 2% per month for his domestic purpose and in token thereof, he executed a pronote and receipt. Suit was contested by Petitioner-Defendant on the plea that the amount had already been paid. Issues were framed. Evidence of both the parties was recorded when the present application for recalling DW3-Balwan Singh was filed, which has been declined by learned Judicial Magistrate Ist Class, Charkhi Dadri vide impugned order by observing as under:

It is relevant to mention that the Defendant after having availed three effective opportunities for his evidence had closed the same vide his own statement. In the said evidence he had examined Balwan Singh (the witness now sought to be recalled) as DW3 which witness was duly cross-examined by the opposite party. It has been stated in the application filed by the Defendant that Balwan Singh, the witness sought to be recalled is to prove the receipt given by the Plaintiff qua his having received the loan amount. Qua this averment, it is sufficient to state that the fact of any such receipt having been given by the Plaintiff to the Defendant does not find mention in the written statement filed by the Defendant and thus, no evidence can be led qua a fact which does not find mention as an averment in the written statement (pleading of the Applicant).

Law is well settled by Hon'ble Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 (3) RCR (Civil) 530, that after deletion of Order XVIII Rule 17-A of the Code, permission for leading additional evidence or for recalling of a witness can be granted by the Court if the evidence was not in the knowledge of the party or the same could not be adduced despite due diligence.

In the present case the execution of the alleged receipt was in the knowledge of the Petitioner from the very beginning and the same was also in his possession. However, in the written statement there is no specific plea taken that any alleged receipt was executed. Rather the plea taken is that the pronote was a result of fraud and hence offences under Sections 419, 420, 467, 468 and 471 IPC are also made against Respondent-Plaintiff.

Hence, 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 and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of 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.