The duty of the court is to ensure substantial justice between the parties, and no evidence on a point not pleaded can be permitted to be adduced.

Anjani Kumar Mishra, J. -- Heard Learned counsel for the parties Shri Brijesh Shukla and Shri Ashotosh for the opposite party.

2. This matter came up for admission on 13.7.2015, when a detailed order was passed by the Court, relevant portion whereof, is extracted below:

"This revision has been filed against the order dated 12.5.2015 by which the application filed by the defendant-revisionist under Order 8 Rule 1-A (3) of Code of Civil Procedure to admit the documents as per list 40/c on record, has been rejected by observing that the applicant has not filed any document as required under Order 8, Rule 1-A (3) of C.P.C. at the time of filing of written statement, however, after examination in chief of the plaintiff witnesses and their cross-examination was over, the documents have been filed with a view to delay the proceedings of the suit."

3. Sri Shukla submitted that the opposite party/plaintiff has not disclosed the facts in the plaint, therefore there was no occasion to file those documents which are mentioned in list 40/c . In his submissions, for the first time, he had disclosed the fact of demolition and reconstruction and handing over the building to the defendant in the year 1987, therefore there was no occasion to file those documents at the time of filing of written statement. The court below has rejected the application of the revisionist on the ground that these documents cannot be filed after the cross examination of the plaintiff-witnesses. The court has also observed that those documents were in possession of the defendants but were not filed at the time of filing of written statement and the reason for not filing the same earlier has not been disclosed.

4. On being confronted, after the cross-examination was over without disclosing any reason for not filing document either at the time of filing of the written statement or at the time of cross examination of the witnesses plaintiff, how the application can be filed, Sri Shukla prays for adjournment.

5. Reiterating the earlier arguments recorded in the order dated 13.7.2015, it has been submitted that the Court below has committed manifest illegality in not allowing the application filed by the revisionist.

6. It is submitted that the statement of the plaintiff witnesses on the question of demolition and reconstruction of the building in question was not beyond the plaint allegations.Under the circumstances, this evidence should either be directed to be ignored or else the documents filed by the revisionist to demolish the newly set up case, are liable to be admitted and should be brought on record failing which there will be resultant failure of justice. He has also submitted that the delay in submitting these documents is on account of lack of legal advice by the Counsel. A party should not be penalized for the fault of his counsel.

7. On the previous hearing, learned counsel for the respondent had been asked to submit as to whether, it would be appropriate for this Court to direct that the facts in his testimony which were not mentioned in the plaint, be ignored or whether the documents filed by the revisionist in rebuttal of that statement taken on record and they be considered.

8. Today, when the case was taken up, instead of submitting on these two options, given to the counsel for the opposite party on the previous occasion, he has placed reliance upon two judgments: Izhaar Ali & another Vs. Prescribed Authority/Judge Small Causes Court, Sitapur and others, 2015 (2) ARC 221 and Alok Garg Vs. Smt. Anju Khurana and two others, 2014 (1) ARC 710, for supporting the impugned orders.

9. The judgments cited by the counsel for the opposite party, namely, Izhaar Ali & another vs. Prescribed Authority and others 2015(2) ARC 221 and Alok Garg Vs. Smt. Anju Khurana and two others,2014(1)ARC 710, are judgments pertaining to amendment of pleadings and the interpretation of the proviso to Order 6 Rule 17 CPC. No question of amendment of pleadings is involved in