Kanhaiya Lal Manchandiya vs Lalchand Baddani and Others

Heard learned counsel for the petitioner.

Plaintiff instituted a suit against the defendant and after the submissions of the written statements the following preliminary issue was framed by the Court below : --

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Both the parties submitted that they do not want to lead any evidence whatsoever before the Court and they will argue on the preliminary issue on the basis of the facts available on record. Next date was fixed. Plaintiff moved an application under Order 18, Rule 17-A C.P.C. and prayed that he wants to lead evidence to prove documents submitted in the court The prayer was rejected by the Court below on the ground that the documents were in the know of the plaintiff and he has also produced them in the court below at the time of the framing of the preliminary issue. He could have said that he will like to lead the evidence after the framing of the issues, but on the contrary he submitted that he does not want to lead any evidence. Counsel for the petitioner submits that under Rule 17-A where the party satisfies the court that after the exercise of due diligence if any evidence was not within his knowledge or could not be produced by him at the time when the party was leading the evidence. The court may permit that party to produce that evidence at the later stage on such terms as may appear to it to be just. This rule authorises the court to permit a party to produce evidence on the fulfilment of the following conditions : --

(i) was not previously known.

(ii) could not be produced in spite of due diligence on his part.

As far as the first part is concerned counsel for the petitioner submits that it does not apply as the evidence was within the knowledge of the present petitioner. He further submits that the second part applies as because of inadvertence on the part of the Advocate submission was made to the Court that they do not want to lead any evidence. The first ingredient of the second part is, could not be produced, the second ingredient is at the time when the party was leading the evidence. As far as the first ingredient is concerned, it does not apply as the petitioner has himself submitted to the Court that he does not want to lead the evidence. Could not be produced, goes to show that there were unavoidable circumstances before a party and on account of unavoidable circumstances the party failed to produce the evidence. It also goes to show that party was diligent throughout, but on account of unavoidable circumstances he could not succeed and failed to produce the evidence. Thus, the words "could not be produced" cannot be equated with a voluntarily waiving production of the evidence under the impression that evidence is not necessary to be led. For this reason I am of the view that Rule 17 of Order 18 does not apply to the facts and circumstances of the case. The petitioner has cited before me the case of Om Parkash Vs. Sarupa and Others, This case does not apply to the facts and circumstances of the present case. It is mandatory under the law that attesting, witness of a will should be examined. The witness was produced in the said case before the Court but on account of inadvertence, may be of the counsel, the signature of the attesting witness could not be executed (sic). The court recalled the witness in the interest of justice. The power to recall a witness is altogether different power and this case does not apply to the facts and circumstances of the case in hand, specially, when the petitioner waived his right to lead evidence after production of document and submitted to the court that he does not want to lead any evidence.

Whether the Civil Court is having the jurisdiction or the Revenue Court is having the jurisdiction, is a mixed question of the fact and law and some times it may be purely a question of fact If the party chooses that it is purely a question of fact and no evidence is necessary then there is no necessity of leading the evidence. Apart from that if the two views are possible the Courts are reluctant in holding that the Civil Court is having no jurisdiction. Even the petitioner is not going to be prejudiced if any adverse order is passed. In the facts and circumstances of the case I do not hold that Rule 17-A of Order 18 applies to this case. I will observe that the court has inherent power whenever necessary in the interest of justice u/s 151 C.P.C. and the Court can exercise the powers if necessary, but it is not a case in which such powers under Section. 151 should be exercised.

In the facts and circumstances of the case, the revision petition is rejected.