1982 Supreme(MP) 418

P. D. Mulye, J.
Krishanlal Sikka v. M/s. Sanghi Beverages.
C. Revn. No. 413 of 1982 (I); Decided on 27-7-1982.

Headnote:(1) Civil P. C., 1908 -- O. 78, R. 17 -- recalling of witnesses under -- provision cannot be used to fill up lacuna -- case closed for judgment -- witness cannot be recalled merely to prove Khata entries.

       (2) Civil P.C., 1908 -- S. 115 and O. 18, R. 17 -- witness recalled after close of case for judgment -- filling up lacuna cannot be allowed in this manner -- jurisdictional error committed.

        The short facts giving rise to this petition material for the decisions of this case, are that the plaintiff non-applicant instituted a money suit against the petitioner defendant after both the parties had closed their evidence when the case was fixed for judgment after hearing arguments, an application was moved on behalf of the plaintiff for recalling P. W. Indermal against for exhibiting the Khata entries. Though this application was opposed behalf of the defendant-applicant the trial Court allowed the same by the injured order which has led to the filing of this revision petition.

        Held : After hearing the learned counsel and after going through the impugned order I am of opinion that the impugned order cannot be sustained as the trail Court has committed an error in exercise of its jurisdiction, when the case was fixed .for judgment after the trial was over, I am of opinion that the plaintiffs application could not be allowed merely for exhibiting the Khata entries as it was the duty of the plaintiff to lead evidence thereon when the plaintiffs evidence was recorded. The argument of the learned counsel fur the non-applicant that under O. 18, R. 17 CPC the trial Court had the jurisdiction to pass the impugned older, cannot be easily accepted as the wording of this provision is very clear as it is not the case of the plaintiff that after exercise of due diligence the said evidence was not with his knowledge or could not be produced be him at the time when the plaintiff was leading his evidence Thus, in my opinion the plaintiff could not be permitted to fill up the lacuna in this manner especially when after the closure of the plaintiffs evidence the defendant himself had adduced his evidence. According to the plaintiffs own case the said documents were already filed by him and, therefore, if he filed to exhibit and prove them as required by law. he cannot be permitted at subsequent date to fill up the lacuna by recalling the said witness in the manner proposed by the plaintiff Revision allowed.