Point of Law : Negligence and failure to produce such evidence because of inadvertence/negligence, is not a lawful ground to permit a party to lead the additional evidence within the ambit and scope of Rule 17-A of Order 18 of CPC as it stood before amendment.

ORDER :

1. Rule. Mr. Amrish K. Pandya, learned advocate waives service of notice for and on behalf of respondent no. 1.

2. Though notice was served upon respondent no. 2, nobody has appeared on behalf of respondent no. 2.

3. By preferring this petition under Articles 16 and 19 of the Constitution of India, the petitioners have challenged the order dated 11.02.2021 passed by the learned Principal Senior Civil Judge, Sanand below Exh.158 in Special Civil Suit No. 549 of 2017 requesting to permit him to examine the witness.

4. Heard Mr. Devang Lathigara, learned advocate for the petitioners and Mr. Amrish K. Pandya, learned advocate for respondent no. 1.

5. It was submitted by learned advocate for the petitioners that Special Civil Suit No. 549 of 2017 was filed by the plaintiff-respondent no. 1 herein before the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) for specific performance, declaration and permanent injunction. It was further submitted that the petitioners are the original defendants and have resisted the suit by filing a detailed written statement at Exh.16 on 20.04.2014 containing that they have not executed any such power of attorney in favour of the defendant no. 2 or anybody. That entire documents of power of attorney relied upon by the plaintiff were bogus and fraudulent. It was further submitted that during the course of proceedings, the petitioners submitted two applications vide Exhs.151 and 152 under Order 16 Rule 1 of the Civil Procedure Code 1908 (hereinafter referred to as “the CPC” for short) for issuance of summons and both the applications preferred by the petitioners were rejected vide order dated 01.02.2021 holding that list of the witnesses was not produced by the petitioners as well as the permission of the Court was not obtained as required Order 16 Rule 3 of the CPC. It was further submitted that after the said order, another application Exh.158 was submitted by the petitioners giving detailed reasons why the witnesses were required to be examined and power of attorney produced on record was not original as it was not registered in the record of Notary and the said fact was proved by the police inquiry in the criminal complaint lodged against the respondent no. 1. It was further submitted in the application Exh.158 that the power of attorney was executed on 30.03.2009 and Survey No. 1044 was formed in the year 2012. That the permission was sought for by the petitioners for examination of the witnesses and the learned Judge, vide order dated 11.02.2021, rejected the application holding that the earlier two applications at Exh.151 and 152 were rejected and the present application was similar, and therefore, earlier order cannot be reviewed. It was further submitted that the impugned order passed by the Court-below is contrary to the provisions of Order 16, Rules 1 and 3 of the CPC as there was no question of reviewing the order previously passed below Exhs.151 and 152. That the earlier applications were for issuance of summons while the present application was for grant of permission to examine the witness. That the learned Judge has made contrary observation that the earlier applications at Exh.151 and Exh.152 were for issuance of summons to the witnesses and application Exh.158 was for the grant of permission to examine the witness. It was further submitted that as the power of attorney was not registered in the register of the Notary and Survey No. 1044 was came into existence in 2012 and alleged power of attorney was executed in the year 2009 both the aspects go to the root of the matter and are important to decide the entire suit. In support of his arguments, learned advocate for the petitioners has relied upon the judgment in the case of Mange Ram vs. Brij Mohan and Others, 1988 (1) GLH 434 and submitted that witness can be examined even without summons and without list of witnesses produced on record. Hence, it was requested by learned advocate for the petitioners to quash and se