The duty of the court to protect public money held by a bank justifies the admission of additional evidence in a recovery suit.

VIJENDER SINGH MALIK, J. - This is plaintiff's revision petition brought under the provisions of Article 227 of the Constitution of India for setting aside the order dated 11.8.2010 (Annexure P/1) vide which learned Additional District Judge, Ludhiana has dismissed the application filed by the plaintiff under Order 41 Rule 27 read with section 151 CPC for permission to lead additional evidence.

2. The plaintiff had filed a suit for recovery of Rs.93,176.26 against the defendants. A credit facility was allowed to the defendants on 16.11.1981 on the defendants' executing various documents including a guarantee agreement by respondent No.5. As the defendants failed to adhere to the financial discipline and failed to keep the account regular, the suit was filed after giving a legal notice to the defendants. The said suit has been dismissed by learned Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 11.2.2004 for the twin reasons that the plaintiff failed to bring on record the statement of account duly attested under the Bankers' Books Evidence Act, 1891, (for short “the Act”) and that the suit has been filed beyond limitation.

3. In the appeal preferred by the plaintiff, it filed an application under Order 41 Rule 27 read with section 151 CPC for permission to lead additional evidence. It is claimed that some balance confirmation letters and demand promissory note as also the statement of account were although placed on the file, but could not be proved by the plaintiff. It was claimed that documents were also a part of the record and nothing is to be prepared by the plaintiff, which could attract the criticism of fabrication subsequently.

4. Learned Additional District Judge, Ludhiana, hearing learned counsel for the parties, has dismissed the application vide order dated 11.8.2010 (Annexure P1), primarily for the reason that the documents were very much within the knowledge of the plaintiff as they were on the record of the file and, therefore, it cannot be said that they could not be proved due to oversight or inadvertence. It was also observed that non production of evidence for lack of proper legal advice is no ground to allow additional evidence at the appellate stage. He has cited a decision of Hon`ble Supreme Court reported as 2008(1) Civil Court Cases 784.

5. Aggrieved by the aforesaid order, the present revision petition has been filed.

6. I have heard Mr. Alok Jagga, learned counsel for the petitioner and Mr. Namit Gautam, learned counsel for the respondents. I have gone through the record carefully.

7. Learned counsel for the petitioner has submitted that the balance confirmation letters were on the record and they could not be proved on account of fault of the bank officials. According to him, the statement of account was, although, there on the record, yet inadvertently the same could not be certified under the Act. He has submitted that the application under Order 41 Rule 27 CPC is not to be dismissed as a matter of routine. According to him, the court has to consider the merits of the plea taken therein. According to him, the court should not refuse to take additional evidence in case the applicant is the public institution and the public money is at risk of being lost. According to him, the documents sought to be produced by way of additional evidence have also to be taken into account for deciding whether it should be allowed to be proved by way of additional evidence. He has submitted that if the documents sought to be produced by way of additional evidence are such, the genuineness of which could not be doubted, additional evidence should be allowed.

8. Learned counsel for the petitioner has further submitted that the additional evidence under the aforesaid provisions has also to be allowed if it enables the court to pronounce the judgment. Referring me to a decision of this court in Ashok Kumar Vs. Aman Kumar and others 2010(1) RCR (Civil) 937, learned counsel for the petitioner