The scope and extent of additional evidence that may be adduced by the other party in rebuttal of documentary evidence admitted at a late stage of the hearing under Rule 2 of Order 13 of the CPC.

Kanhaiya Singh, J.

1. This is an application for revision of the order of Shri K.N. Singh, Additional Subordinate Judge Dumka dated the 17th day of July, 1954, by which he refused permission to the petitioner to adduce evidence on merits of the case and restricted the additional evidence to be adduced in rebuttal by the petitioner to the factum of the service or otherwise of the notice under Section 80 of the Code of Civil Procedure. The facts leading up to this application are these.

The opposite party instituted in 1951 Money Suit No. 20/10 of 1951/54 for recovery from the petitioner, who is the Union of India, of Rs. 19,820 on account of the price including incidental charges, of a consignment of 249 bags of mustard seeds weighing 529 mds. 5 srs. on the ground of non-delivery. The consignment was booked at Barley and was deliverable to the opposite party at Sahibganj. The petitioner resisted the claim substantially on the ground that the non-delivery of the consignment occurred due to circumstances beyond the control of the Railway.

It was alleged that when the consignment reached Moghalsaral, the card labels of the wagon were altered by some miscreants so as to read Patna City in lieu of Sahibganj, with the result that the consignment was taken to Patna City where its delivery was taken by some person on the strength of a railway receipt which was subsequently found to be forged.

2. One of the specific pleas raised by the petitioner was non-service of the notice under Sec. 60 of the Code of Civil Procedure. The hearing of the case was taken up on 23-6-1954 and was concluded on 24-6-1954 and the Court adjourned the case to 29-6-1954 for judgment. Thereafter, the opposite party produced on 26-6-1954 a registration receipt and also a postal acknowledgment receipt in proof of the service of the notice under Section 80, Civil P.C. The petitioner objected to the admission of the evidence after the conclusion of the hearing. The Court, however, disallowed the objection and admitted the documents in evidence on 29-6-1954. The petitioner then filed an application on 17-7-1954, for examination of the witnesses who had not been examined. The Court, however, rejected the prayer of the petitioner and fixed 23-8-1954 for production by the petitioner of evidence respecting service of notice under Section 80, Civil P. C. only.

3. The Government Advocate contended that the order of the Court refusing permission to examine witnesses on questions other than the service of notices under Section 80, Civil P.C., was made in irregular exercise of jurisdiction and it would result in manifest injustice to the petitioner. It is pointed out that all the witnesses of the petitioner, except those belonging to Moghalsarai and Patna City were ready on the date of the hearing, namely 23rd and 24th June, 1954, and the witnesses of Moghalsarai and Patna City, who were absent were important witnesses and their evidence was absolutely essential to prove the defence set up by the petitioner.

Since, however, the evidence adduced by the opposite party was not sufficient to establish affirmatively the service of the notice under Section 80 of the Code of Civil Procedure, which was fatal to the suit, the petitioner, acting on legal advice, did not apply for adjournment of the hearing for examination of the absent witnesses in order to avoid unnecessary waste of Courts time. It is said that the Additional Evidence on the merits of the claim was necessitated in consequence of the admission by the Court of further evidence in proof of the service of the notice under Section 80, Civil P.C., after the petitioner had closed its case.

The Government Advocate contended that if the opposite party had not adduced the aforesaid additional evidence the petitioner would not have pressed for permission to adduce further evidence in support of the defence. On the other hand, Mr. U.N. Sinha contended that Rule 2 of Order 13 of the Code of Civil Procedure vested in the Co