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IN THE HIGH COURT OF DELHI AT NEW DELHI
NAVIN CHAWLA, J.
HSIL Ltd. – Appellant
Versus
Manish Vij and Others – Respondent
CS(OS) 486 of 2014 & Crl.M.A. 35425 of 2018, Crl.M.A. 3621 of 2019
Decided on : 02-05-2023
EVIDENCE - CIVIL PROCEDURE CODE, 1908 (ORDER XVIII RULE 3) - [ORDER XVIII RULE 3] - The court allowed the defendants to summon witnesses to produce the EDPMS report and bank remittances as additional evidence, subject to a cost of Rs. 1 Lakh to the plaintiff for the delay caused. The evidence was to be produced before the same learned Local Commissioner who recorded the previous evidence. The fee of the learned Local Commissioner was to be the same as fixed earlier by the Court.
Fact of the Case:
The defendants sought permission to lead rebuttal evidence, claiming that the witness of the plaintiff had admitted receiving payments from parties other than those to whom the exports were made. The plaintiff opposed, arguing that the defendants had previously undertaken not to lead further evidence.
Finding of the Court:
The court allowed the defendants to produce additional evidence, specifically the EDPMS report and bank remittances, subject to a cost of Rs. 1 Lakh to the plaintiff for the delay caused. The evidence was to be produced before the same learned Local Commissioner who recorded the previous evidence.
Issues: The effect of Order XVIII Rule 3 of the Civil Procedure Code, 1908 (CPC) and whether the defendants should be allowed to lead additional evidence in the interest of justice.
Ratio Decidendi: The court held that the defendants could be allowed to lead additional evidence, specifically the EDPMS report and bank remittances, in the interest of justice, subject to a cost of Rs. 1 Lakh to the plaintiff for the delay caused. The evidence was to be produced before the same learned Local Commissioner who recorded the previous evidence.
Final Decision: The court allowed the defendants to summon witnesses to produce the EDPMS report and bank remittances as additional evidence, subject to a cost of Rs. 1 Lakh to the plaintiff for the delay caused. The evidence was to be produced before the same learned Local Commissioner who recorded the previous evidence. The fee of the learned Local Commissioner was to be the same as fixed earlier by the Court.
JUDGMENT :
NAVIN CHAWLA, J.
IAs 21706-07/2022
1. The above applications have been filed by the defendants inter alia praying for the permission to lead rebuttal evidence, and for the same, summon the Assistant Commissioner of Customs (in short, ‘BRC Cell’), Tughlakabad, New Delhi and the Bank Manager, HDFC Bank, Connaught Place, New Delhi, to produce the Exports Data Processing and Monitoring System (in short, ‘EDPMS’) report of the plaintiff-company (under IEC Code-0588080632).
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PLAINTIFF:
2. The above applications are opposed by the learned counsel for the plaintiff, submitting that the issues in the present suit were framed by this Court vide its order dated 07.05.2015. It was further recorded in the said order that having regard to the nature of issues framed, in the first instance, the defendants shall lead the evidence followed by the plaintiff.
3. In compliance with the said order, the defendants led their evidence and closed the same, as recorded by the learned Local Commissioner in the proceeding held on 29.09.2015. The defendants, at the time of closing their evidence, did not reserve their right to lead rebuttal evidence.
4. While the evidence of the plaintiff was being recorded, the defendants filed an application seeking to confront the witness of the plaintiff with certain documents which were not on record, running into around 150 pages. The said application was dismissed by the learned Joint Registrar vide order dated 20.10.2016. A Chamber Appeal against the same was also dismissed by a learned Single Judge of this Court vide order dated 19.01.2018.
5. In an appeal filed challenging the said order dismissing the Chamber Appeal, being FAO(OS) No. 21/2018, the Division Bench of this Court, vide order dated 24.05.2018, allowed the appeal and remanded the matter back to the learned Single Judge for fresh consideration of the application filed by the defendants. The challenge of the plaintiff to this order was dismissed by the Supreme Court vide order dated 24.09.2018.
6. Finally, by the order of 20.09.2019, with the consent of the learned counsels appearing for the parties, the application filed by the defendants was allowed, subject to the condition that the defendants shall not lead any further evidence.
7. The learned counsel for the plaintiff submits that the defendants had undertaken that they would not lead any further evidence in the suit and their evidence already stands concluded. He submits that it is on that basis that the plaintiff gave its consent for the plaintiff's witness to be confronted with the additional documents as was being prayed for by the defendants. He submits that the defendants cannot be allowed to wriggle out of the said undertaking. He submits that, in fact, the plaintiff's evidence had also been concluded on 01.05.2017 and the defendants had taken a conscious call that no further evidence needs to be led even in rebuttal when they gave the above undertaking.
8. The learned counsel for the plaintiff submits that in the meantime, the witness of the plaintiff, Mr. A.K. Mohanty, Vice President (IR & Legal) had retired. The plaintiff, therefore, was compelled to seek substitution of the said witness with Mr. Paras Kumar. The plaintiff filed an application seeking substitution of the witness, which was allowed by this Court vide its order dated 14.01.2020. The defendant, however, continued to remain bound by the statement that no further witness will be examined by the defendants. He submits that substitution of the witness cannot give an excuse to the defendant to lead rebuttal evidence.
9. The plaintiff, thereafter, filed the affidavit of Mr. Paras Kumar. In the affidavit, Mr. Paras Kumar clearly stated that his affidavit is limited to the documents sought to be produced by the defendants and as permitted and allowed by this Court vide order dated 20.09.2019. He, further stated as under:
The court has the discretion to allow a party to lead additional evidence in the interest of justice, subject to conditions and costs, even after the conclusion of the evidence and before the final a....
Rebuttal evidence may be presented even after closure of evidence if necessary to ensure fairness and justice in legal proceedings.
A party in a civil suit has the right to lead rebuttal evidence on issues where the burden of proof lies on the opposing party, even if the party has the burden of proof on other issues.
The main legal point established in the judgment is the application of the principle of res judicata in the context of allowing rebuttal evidence and the relevance of documents previously allowed by ....
Power under Order 18 Rule 17 CPC r/w Section 151 to recall witness for additional evidence post-closure is discretionary, not routine; rejected where no due diligence for non-production earlier, mere....
A party's right to lead rebuttal evidence is forfeited if not reserved before the opposing party begins their evidence, as per Order 18 Rule 3 CPC.
The main legal point established in the judgment is the importance of following proper procedures for proving evidence under the Evidence Act and the duty of the adjudicating authority to fully focus....
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