The court has the discretion to allow a party to adduce evidence after the closure of evidence under Order 18, Rule 2(4), Civil Procedure Code, in order to prevent miscarriage of justice.

R. C. PATNAIK, J.

( 1 ) THIS revision is directed against an order passed by the learned Munsif, Kendrapara, disallowing the motion of the plaintiff-petitioner under Order 18, Rule 2 (4), Civil P. C. , seeking permission to prove certain documents after closure of the evidence of both the parties.

( 2 ) THE petitioner filed Title Suit No. 76 of 1979 for declaration of title, confirmation of possession and in the alternative for recovery of possession and for permanent injunction. He alleged that the defendants and he were the descendants of the common ancestor. Title Suit No. 109 of 1952 was filed by the father of defendants 3 and 4 against the father of defendants 1 and 2 and the plaintiff. The parties reached an amicable settlement and the suit was disposed of on compromise, allotting specific properties. Title to specific properties is traceable to the compromise decree. The defendants, however, in violation of the compromise decree, threatened to interfere with the enjoyment of the property allotted to and in the possession of the plaintiff. The threats were the cause of action for the suit. Defendants 1 and 6 joined contest and filed their written statement denying the compromise and the assertions made by the plaintiff-petitioner on the basis of the compromise decree.

( 3 ) THE compromise decree, therefore, is the sole foundation of the plaintiff's case and the most crucial document in the adjudication of the controversies. Two proceedings under Order 39, Rule 1, Civil P. C. , had been initiated--one at the instance of the plaintiff and the other at the instance of defendant 6. The petition for compromise was filed as early as on 26-3-1979 along with the plaint The hearing of the suit was taken up on 16-9-1980 and parties closed their evidence on 17-9-1980. The case was posted for arguments. On 12-11-1980, the plaintiff filed an application for acceptance of certain documents. The following order was passed.

". . . . . . Petition is allowed and the documents are accepted subject to proof and relevancy. Heard argument in part. Exts. 1, 2, 3, 3/a, 4 and 4/a are marked. Call on 13-11-80 for further arguments. . . . "

In the list of documents, the petition for compromise was shown to have been admitted without objection and marked as Ext. 2. On 14-11-1980, defendants 1 and 6 filed a petition to delete Ext. 2 from the list on the ground that the petition for compromise, not being a public document, should not have been admitted into evidence without proof and the order dated 12-11-1980 clearly stated that the document was accepted subject to proof. To meet the situation arising out of the objection raised by defendants 1 and 6 and the state of the record the plaintiff filed an application under Order 18, Rule 2 Civil P. C. , for an opportunity to prove the document by adducing evidence. The learned Munsif allowed the application filed by defendants 1 and 6 deleting Ext. 2 on the ground that the petition for compromise being a private document did not prove itself and could not automatically get marked as exhibit. The learned Munsif also disallowed the prayer of the plaintiff for an opportunity to prove the compromise petition. The reasons for the rejection were that the motion was made at a belated stage and there was no "good reason" to afford an opportunity.

( 4 ) SUB-RULE (4) of Rule 2 of Order 18 was added by the Civil Procedure Code (Amendment) Act, 1976. Even before the amendment, many of the High Courts had amended the rule empowering the court to direct any party to examine any witness at any stage for reasons to be recorded by the court in writing. The amendment is in furtherance of the cause of justice and for preventing miscarriage of justice in certain cases. The provision confers a discretional jurisdiction on the court. Jurisdiction is invoked at a stage where a party cannot adduce evidence as of right having regard to sequence of recording of evidence. Being a discretionary jurisdiction, it has to be exercis