RAM DASS 'NADAR' vs RAJINDER KUMAR KHURANA

THE applicant has moved this application under Order XVIII, Rule 17A of the Code of Civil Procedure, 1908 (the CPC for brief) read with Regulations 13(2) and 68 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (the Regulations for brief) framed under Section 66 of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief). THEreby the applicant wants to lead evidence in support of his case at trial. THE respondent has filed his reply and has resisted this application on several grounds.

IT would be quite proper to look at certain facts giving rise to the present application. The applicant has filed one compensation application under Section 12B of the MRTP Act for claiming compensation in the sum of Rs. 6,25,600/- from the respondent under various heads charging the respondent with adoption of and indulgence in unfair trade practices within the meaning of Section 36A thereof. The respondent has filed his reply and has resisted the compensation application on several grounds. The issues were framed on 14th November, 1998. IT appears that in view of the application made by and on behalf of the respondent an additional issue regarding the maintainability of the proceeding was framed on 28th August, 1998. IT appears that at that time it was stated by the applicant that he proposed to rely only on documents to prove his case and no oral evidence was to be led. He was, therefore, directed to issue the notice of admission/denial of documents which was to take place at 2.00 p.m. on 5th October, 1998. The respondent was also directed to file the list of witnesses alongwith affidavits within a period of six weeks with a copy to the applicant. IT appears that the admission/denial of documents could not take place on 5th October, 1998 but was done on 14th October, 1998. The respondent admitted only two documents at Sl. Nos. 1 and 5 out of total eight documents. IT appears that the matter was listed for final arguments on 27th November, 1998. No final arguments took place as the respondent had not filed his list of witnesses. The respondent was given time to file his list of witnesses and documentary evidence within two weeks before the next date of final hearing with a copy to the applicant. The case was adjourned to 26th February, 1999 for final arguments. The present application was moved by the applicant on 26th February, 1999. Learned Advocate Mr. Kumar for the applicant has submitted that, in view of the relevant provisions contained in Order XVIII, Rule 2 of the CPC, an application for additional evidence can be entertained at any stage of the proceeding even at the stage the case is fixed for arguments. In support of his submission he has relied on a recent ruling of the High Court of. Punjab and Haryana in the case of Mam Raj v. Smt. Sabiri Devi & Ors., reported in AIR 1999 Punjab and Haryana 96 and also on a ruling of the Orissa High Court in the case of Alekh Pradhan & Ors. v. Bhramar Pal & Ors., reported in AIR 1978 Orissa at P. 58. As against this learned Advocate Mr. Barqui for the respondent has submitted that the present application is under Order XVIII, Rule 17A of the CPC and not under Order XVIII, Rule 2 thereof and it is not open to the applicant to take recourse to the relevant provisions contained in Order XVIII, Rule 2 of the CPC. Besides, runs the submission of Mr. Barqui for the respondent, having agreed not to lead any oral evidence, it could not be open to the applicant to turn round at this stage and to pray for leading evidence in this case.

In its ruling in the case of Jai Jai Ram Manohar v. National Building Material Supply, Gurgaon, reported in AIR 1969 Supreme Court at P. 1267, the procedural law has been held to be the handmaid of justice and has further been held to be designed to sub-serve, and not to subvert, interests of justice. Adducing evidence at trial during the course of the proceeding is always a procedural matter. Citation of an incorrect provision of law for the purpose of making an application for leading evidence need not come in the way of a party in getting the desired relief from the Court, if entitled to. We, therefore, do not find any merit or substance in the submission urged before us by learned Advocate Mr. Barqui for the respondent that it would not be open to the applicant to resort to Order XVIII, Rule 2 of the CPC when an application for the purpose has been moved under Order XVIII, Rule 17A thereof.

SO far as the merits of the case are concerned, it may be noted that the applicant made a statement that he would rely on the documentary evidence alone on a solemn belief that all the documents relied on by him to substantiate his case at trial would be admitted by and on behalf of the respondent. Learned Advocate Mr. Barqui for the respondent might have perhaps been justified if all the documents produced by and on behalf of the applicant to substantiate his case at trial was admitted by and on behalf of the respondent. It is an admitted position on record that the respondent has admitted only two out of eight documents produced by and on behalf of the applicant to substantiate his case at trial. In that view of the matter, it would be necessary for the applicant to lead evidence at trial to prove the documents which have not been admitted by and on behalf of the respondent in this proceeding. The applicant can be permitted to lead evidence at any stage of the trial in view of the afore said ruling of the High Court of Punjab and Haryana in the case of Mam Raj (supra) and the ruling of the Orissa High Court in the case of Alekh Pradhan (supra). In fact, the applicant can also be permitted to produce additional evidence at any stage of trial. It needs no telling that a ruling of the High Court would be binding to this Commission in view of the Full Bench ruling of this Commission in the case of Holy Angels School v. The Director General (Investigation and Registration), reported in 1998 (6) CTJ 129. In that view of the matter, there should not be any hitch or hurdle in acceptance of the present application.

IN view of our aforesaid discussion, we are of the view that the applicant should be permitted to lead his evidence to substantiate his case at trial. It must be said to the credit of learned Advocate Mr. Kumar for the applicant that he has annexed with this application evidence of the applicant by way of affidavit together with certain other documents. It would be open to the respondent to seek cross-examination of the applicant in the light of his affidavit of evidence and the documents sought to be proved thereby, if necessary. IN the result, this application is accepted. The applicant is permitted to tender his evidence by means of affidavit together with production of documents therewith. It would be open to the respondent to claim cross-examination of the applicant in the light of his affidavit, if necessary. There shall be no order as to costs on the facts and in the circumstances of the case. Application allowed.