The court may allow the production of additional evidence if the documents sought to be proved are already on record and have been exhibited before, and if the party seeking to produce the evidence can show that the trial court was not right in shutting out the evidence on technicalities.

JUDGMENT

G.C. Garg, J. (Oral) - Petitioner-plaintiff filed a suit for recovery of Rs. 30960. The plaintiff while filing the suit attached copies of bahi entries as Annexure A with the plaint. Defendant was proceeded ex-parte. The bahi entries were exhibited during ex-parte proceedings on the statement of Ashok Kumar, PW1 along with true translation of the entries, as the entries were in "lande" character. The suit was ultimately decreed on 14.8.1987.

2. Defendant moved an application after the passing of the ex-parte decree for setting aside the ex-parte decree which was dismissed by the trial Court. However, on appeal the application was allowed and ex-parte decree was set aside by order dated 16.9.1991 and matter was remitted to the trial Court to decide the suit afresh in accordance with law.

3. Plaintiff and defendants thereafter led their evidence. Plaintiff at that stage realised that the bahi entries, which had been exhibited before passing of the ex-parte decree, have not been exhibited after the setting aside of the ex-parte decree. Plaintiff consequently moved an application under Order 18 Rule 17-A of C.P.C. to prove the bahi entries by examining Ram Murti, Munim of plaintiff-firm. Trial Court by an order dated 18.3.1992 dismissed the application. Hence this revision at the instance of the plaintiff.

4. Learned counsel for the petitioner, during the course of hearing of this petition, submitted that the entries sought to be proved are already on record and in fact had been filed with the plaint itself. These entries were exhibited before passing of the ex-parte decree. Not only this, these very entries which were available on record, were put to the defendant-respondent, when he appeared as his own witnesses as DW-2. Learned counsel further submits that once documents had been exhibited and put to the defendant, the same ought to have been allowed to be proved, by producing the Munim by way of additional evidence. It was on account of sheer mistake of learned counsel for the plaintiff that the entries could not be got exhibited in the second round of litigation under the impression that the same already stood exhibited.

5. Learned counsel for the respondents could not dispute any of these facts and only submitted that it was well in the knowledge of the plaintiff that the documents had not been exhibited and that mistake of the counsel is not a ground to permit the plaintiff to lead additional evidence. Learned counsel further submitted that the plaintiff has failed to prove due diligence for not proving these documents on an earlier occasion and, therefore, the plaintiff is not entitled to grant of permission to lead additional evidence.

6. After hearing learned counsel for the parties and on a consideration of the matter, I am of the opinion that in the facts of this case, this revision petition deserves to be succeed. The documents sought to be produced by way of additional evidence were filed along with the plaint and had been duly proved and exhibited on an earlier occasion when defendant-respondent had been proceeded against ex-parte. Not only this, these very documents which were available on record, obviously bearing the exhibit mark, were put to the defendant-Piara Singh when he appeared as his own witness as DW-2. Once that is so, the trial Court in my mind was not right in shutting out the evidence of the plaintiff on technicalities. Learned counsel obviously must have been misled in this case as documents are already on record and have the endorsement as exhibits. No prejudice would be caused to the defendant- respondent, if the documents are allowed to be proved and exhibited by way of additional evidence, in view of the fact that these very documents have already been put to the defendant in his cross-examination. Defendant, however, can be compensated by payment of costs in that behalf and for permitting the plaintiff to produce the Munim to prove these documents.

7. For the reasons recorded above, thi