Lakhmi Dayal vs Sm. Pushpa Devi

M.A. Shahmiri, J.—This is a revision application directed against an interlocutory order of the trial Court of Subordinate Judge, Jammu, by which the defendant's application for allowing him an opportunity to lead further evidence, after the trial Court in exercise of its discretionary power under Order 16, Rule 14, C.P.C, had examined three witnesses, was turned down on the ground that there was no express provision in the Code

which, gave any party to the suit a right to lead further evidence after the trial Court had exercised its powers under Order 16, Rule 14, C.P.C.

I have heard counsel for the parties. I agree that there is no express provision in the Code conferring such a right on a party to a proceeding. But

at the same time the Code does not lay down any express prohibition in this behalf. Under the general principles of law when further evidence has been led whether on behalf of the opposite party or at the initiative of the Court, the party, which is likely to be affected by the production of such

evidence, should have the right to lead further evidence, if it so chooses,, and the fact that this contingency has not been expressly provided for in the CPC does not nullify this principle.

The trial Court should have itself asked the parties if they would like to produce further evidence in the case alter it had examined three more witnesses after the parties had closed their evidence In any case I am clearly of opinion that in the circumstances it should not haves turned down the application of the defendant applicant to lead further evidence.

The learned Counsel for the plaintiff-non-applicant has argued that this revision application is n1ot competent as the order under revision does

not fall within the meaning of the words 'case decided' as used in Section 115 of the Coda of Civil Procedure, and the applicant has a remedy open to him while appealing from the final decree of the trial Court.

After careful consideration I am unable to agree with these contentions and I adhere to the opinion that I have expressed in my judgment in Civil

Revision No. 12 of 2007, Mahomed Maqbul v. Qadir Munjgaroo AIR 1954 J&K 26 (A), in which I have discussed the relevant case law on the

point. As indicated there, where the remedy is too remote or cumbersome to be of any practical utility in the particular circumstances of the case the revision would lie and this Court can grant the necessary relief.

In this connection it has to be borne in mind that as stated in my judgment referred to above and in the Board ruling 5 J and K LR 169 (B), the revisional powers of this High Court are wider than those of the other High Courts in India inasmuch as in Section 115 of the CPC in force in the

State we have an additional Clause (d) which gives the High Court power to interfere in cases where the subordinate Courts appear to have caused failure of justice.

Refusal to allow a party to lead evidence after the trial Court had examined a number of witnesses in exercise of its power under Order 16, Rule

CPC is very likely to cause failure of justice and the remedy by way of appeal is too remote and cumbersome to completely undo the wrong

which would otherwise be done to the applicant.

For the foregoing reasons I accept this: revision application, set aside the order of the trial Court and direct it to allow the parties to lead further

evidence in this case. The parties must, however, produce this evidence expeditiously and the trial Court should see that the disposal of the case is not unduly delayed. Costs shall abide the event.