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2015 Supreme(Del) 4445
DELHI HIGH COURT
Pratibha Rani, J.
Mukesh Gulati - Appellant
Versus
Suraj Prakash Chauhan & Ors. - Resopndent
CM(M) 800/2015
Decided On : 06-11-2015
For the Respondent:Mr. Rajan Chaudhary, Advocate.
The power to allow additional evidence should not be used routinely and should only be exercised in bona fide cases where the evidence will assist in rendering justice.
Headnote:
Additional Evidence - Civil Procedure - Order VIII Rule 1A(3) CPC, Order XVIII Rule 17 CPC - K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275, Vadiraj Naggapa Verrneka (D) Through Lrs. v. Sharad Chand Prabhakar Gogate, V (2009) SLT 250 - The court discussed the provisions of Order VIII Rule 1A(3) CPC and Order XVIII Rule 17 CPC in the context of allowing additional evidence at the stage of final arguments. The court referred to the judgments of K.K. Velusamy v. N. Palanisamy and Vadiraj Naggapa Verrneka (D) Through Lrs. v. Sharad Chand Prabhakar Gogate, and emphasized that the power to allow additional evidence should not be used routinely and should only be exercised in bona fide cases where the evidence will assist in rendering justice. The court also highlighted that the purpose of the provisions is not to fill up omissions in the evidence of a witness who has already been examined.
Fact of the Case:
The petitioner sought to produce additional evidence at the stage of final arguments, claiming that the information obtained under RTI Act was only available after the evidence had been led by both parties. The court declined the petitioner's request, stating that the petitioner had sufficient opportunity to prove the facts and that the suit pertained to a property not falling under the claimed Khasra number.
Finding of the Court:
The court found that the petitioner's request to produce additional evidence at the stage of final arguments was not justified, as the information was known to the petitioner prior to the filing of the suit. The court dismissed the petition, finding no illegality or infirmity in the impugned order.
Issues: The main issue was whether the court could decline to take on record documents that were not available at the stage of filing of documents or leading the evidence, and whether the petitioner should be denied the opportunity to prove its case by leading evidence to prove such documents.
Ratio Decidendi: The court emphasized that the power to allow additional evidence should not be used routinely and should only be exercised in bona fide cases where the evidence will assist in rendering justice. The court also highlighted that the purpose of the provisions is not to fill up omissions in the evidence of a witness who has already been examined.
Final Decision: The petition was dismissed, and no costs were awarded.
Key Points: - The power to allow additional evidence must not be used routinely and is only permissible in bona fide cases where it will assist in rendering justice (!) (!) (!) . - Additional evidence may be considered at the stage of final arguments only if it clarifies issues already raised and was not available earlier for valid reasons (!) (!) . - The court must assess whether the evidence would assist in achieving a just and effective adjudication, and whether non-production earlier was due to valid and sufficient reasons (!) (!) (!) . - Applications to produce evidence known before but not previously advanced are generally not permitted, especially when the suit is already at the stage of final arguments (!) (!) (!) . - The purpose of the provisions is not to fill gaps in evidence caused by prior negligence or to protract proceedings (!) (!) . - If additional evidence is permitted, the court may award costs to the opposing party and ensure the matter is completed promptly (!) . - Where the subject property is not the one pleaded (e.g., suit pertains to a different property than the Khasra in question), the party cannot later seek to adduce evidence in relation to that other property at final arguments (!) (!) .
What is the scope of the court’s power to allow additional evidence at the stage of final arguments?
How may courts handle applications to produce evidence obtained after the evidence-in-chief has closed?
What standard must a party meet to obtain permission to lead additional evidence at a late stage?
Pratibha Rani, J.:-
CM(M) 800/2015
1. The limited question raised before this Court by the petitioner is whether the Court can decline to take on record the documents which were not available at the stage of filing of documents or leading the evidence and deny that party an opportunity to prove its case by leading evidence to prove such documents which have material bearing to the controversy involved.
2. Mr. Ankur Mahindru, Advocate appearing on behalf of the petitioner vehemently urged that the information received under RTI Act from the Public Authorities was only after the evidence has been led by both the parties. He has submitted that merely because the case is at the stage of final arguments is not sufficient to decline a party the opportunity to produce documents and lead evidence as at the appropriate stage the same were not in possession of that party.
3. Learned counsel for the petitioner has relied upon the judgment of K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275, III (2011) SLT 107, wherein the Apex Court ruled that the Court have the inherent right for the re-opening or recalling of the witness for the ends of justice.
4. Vide impugned order dated 20th July, 2015, the learned Civil Judge dismissed the application under Order VIII Rule 1A(3) CPC whereby the petitioner wanted to place on record letter dated 1st August, 2013 vide which he came to know that vide award No. 1606 regarding Khasra No. 106/2, possession of land in question was given to DDA on 7th August, 1963. The application under Order XVIII Rule 17 CPC was filed to examine an official from Slum and JJ Department to prove the factum of accusation of 4 bigha 16 biswa land forming part of Khasra No. 106/2 and possession thereof being handed over to DDA vide notification dated 20th March, 1974.
5. Learned Trial Court declined the prayer made in the two applications for the following reasons:-
(i) The case is at the stage of final arguments which started way back on 16th February, 2015 i.e. prior to the letter dated 19th June, 2015 vide which the petitioner allegedly came to have acquired the knowledge of possession of the land being taken by DDA.
(ii) The petitioner/defendant had sufficient opportunity to prove the above facts.
(iii) Reliance placed on K.K. Velusamy v. N. Palanisamy (Supra) by learned counsel for the petitioner is not applicable to this case especially when in the said judgment a caution has also been given that the power under Section 151 CPC or under Order XVIII Rule 17 CPC is not to be used in a routine manner.
6. Learned counsel for the petitioner though referred to para Nos. 14 and 15 of the judgment in support of his contention, these paragraphs have to be read in the light of observation made by Hon'ble Supreme Court in para No. 16 of the said judgment. Para Nos. 4, 15 and 16 read as under:-
“14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.
15. The appellant – defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs. 50,000, as the respondent insisted upon 13 execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the deposition
