Shri Ganga Prasad Deceased ... vs Smt. Shanti Devi
2002 Latest Caselaw 609 Del

JUDGMENT

Mahmood Ali Khan, J.

1. The petitioners, who have been substituted as legal representatives of the deceased defendant, have filed this revision petition under Section 115 of the CPC assailing the order of a Civil Judge dated 27.1.2001 by which he had dismissed an application filed by the petitioners under Order 18 Rule 17A CPC read with Section 151 CPC and another application filed by these petitioners under Order 16 Rule 3 CPC.

2. Briefly stated the facts are that the respondent had filed a suit for possession against Ganga Prasad, who had since died and is now represented by the petitioners, on the averment, in short, that Ganga prasad deceased was once a tenant in the suit shop under the predecessors-in-interest of the plaintiffs and that in execution of the eviction order the possession of the suit shop was taken over by them and that Ganga Prasad thereafter illegally and forcibly had taken unauthorised possession of the suit shop. This suit was resisted by Ganga Prasad. The evidence of the plaintiff concluded in the year 1994. Ganga Prasad thereafter died on 16.8.1999 when the suit was pending for hearing of arguments. The petitioners, were then brought on record as LRs of the deceased Ganga Prasad.

3. The petitioners have submitted an application dated 9.10.2000 under Order 18 Rule 17A CPC with the allegation that the plaintiff claims herself to be the owner of the suit shop; she alleged that Ganga Prasad was in unauthorised occupation in the said shop; Ganga Prasad was previously a tenant under the predecessor-in-interest of the plaintiff and was evicted in execution of a decree; subsequently Ganga Prasad had taken forcible possession of the premises by breaking open the lock and; the decree was executed in the absence of the judgment debtor but wife of the judgment debtor Smt. Nirmala Devi who was present had signed the warrant of possession. It is further alleged that Ganga Prasad, however, had denied that he was ever dispossessed from the disputed shop by the predecessor-in-interest of the plaintiff and the predecessor-in-interest of the plaintiff seems to have manipulated some documents with malafide intention. After the death of Ganga Prasad a new counsel was engaged by the petitioners and during discussion with him it transpired that Ganga Prasad, deceased and the counsel inadvertently and by oversight had not examined Smt. Nirmala Devi as a witness in this case. Her testimony is necessary since the allegation is that he warrant of possession was executed and the possession of shop was taken over in her presence. The respondent has intentionally not made her a party to the suit as legal representative of the deceased. It is, therefore, prayed that the petitioners should be permitted to examine Smt. Nirmala Devi as a witness.

4. In addition to this application the petitioners also filed another application on 9.10.2000 under Order 16 Rule 3 CPC for amendment of the list of witnesses in order to add the name of Smt. Nirmala Devi as a witness.

Both these applications are opposed by the respondent/defendant. It is contended by her that the applications are filed with malafide intention in order to cause delay in the disposal of the case. It is submitted that the statement of Smt. Nirmala Devi is neither relevant nor is necessary for the adjudication of the real question in controversy. It is prayed that the applications be dismissed by imposing heavy cost on the petitioners.

5. The learned Civil Judge held that the file of the previous execution case was called and the certified copies of the documents have already been proved, therefore, there was no need for summoning of the execution file again for recording the statement of Smt. Nirmala Devi. It was further held that the evidence of the plaintiff was closed on 12.10.1988 and thereafter defendant Ganga Prasad examined witness and closed his evidence in the year 1994. The case was fixed for final arguments. After the death of Ganga Prasad the petitioners were brought on record as his legal representatives. They filed one application after another in order to cause delay in the disposal of the suit. The learned Civil Judge was also of the view that it is not a case where statement of Smt.Nirmala Devi could not have been recorded by the defendant deceased Ganga Prasad before the evidence was closed in 1994. The execution file was called and the certified copies of the documents of that file were proved during the evidence. He therefore did not find merit in the application as there was no cogent explanation given by the petitioners for non production of the said witness before the evidence of the defendant was over. The learned Civil Judge for these reasons dismissed both the applications.

6. The petitioners are aggrieved and have filed this present petition.

The argument of the counsel for the petitioners is that the statement of Smt. Nirmala Devi was necessary for deciding the question involved in this suit. It is submitted that the case of the respondent was that her Predecessor-in-interest had evicted deceased Ganga prasad form the tenanted shop and the possession of the shop was taken by them in execution of the warrant of possession in the presence of Smt. Nirmala Devi how had singed the warrant of possession. It is therefore, contended that the statement of Smt. Nirmala Devi becomes relevant and necessary for deciding the question whether Ganga Prasad was evicted form the suit shop in execution of the warrant of possession because Ganga Prasad had denied that he was ever evicted or dispossessed from the suit shop.

7. The argument of the counsel fort the respondent, on the other hand, is that the petitioners have not been able to satisfy the two conditions necessary for allowing a party to produce additional evidence under Order 18 Rule 17A CPC. It is argued that before the court exercises its discretion vested by Rule 17A of Order 18 CPC the party has to give satisfactory explanation as to why it could not produce the evidence despite exercise of due diligence or that the evidence sought to be produced was not within its knowledge or it could not be produced by it when the said party was leading its evidence. Smt. Nirmala Devi was available to the defendant Ganga Prasad and she could have easily examined her as a witness before the evidence was closed in 1994. She was not produce intentionally. Instant application has been filed only for causing delay in the disposal of the case. He has relied upon the judgments in Khuda Bux and another v. Nafis Ahmad and Ors., 1998 AIHC 2956 & Sukhdev Singh and Ors. v. Gurmukh Singh and Ors. 1999 AIHC 1054 in support of his argument.

8. I have given careful consideration to the submissions made and the facts of the case.

The petitioners have admitted that the evidence of the respondent was closed in 1988 and thereafter the defendant Ganga Prasad deceased had produced his evidence which concluded in the year 1994. They have also not denied that the plaintiff respondent had pleaded that Ganga Prasad was a tenant in the suit shop and that her predecessor-in-interest had obtained a decree for possession against him and in execution of the warrant of possession issued against him Ganga Prasad was dispossessed form the shop in the presence of Smt. Nirmala Devi who had singed the warrant of possession. It is also not denied that Ganga Prasad in his written statement has controverter the allegations of the respondent plaintiff that the possession of the suit premises was taken over form him in execution proceeding. He has asserted that he continued to be in possession of the premises. Smt. Nirmala Devi is not a stranger but is alleged to be the wife of deceased Ganga Prasad. Ganga Prasad examined three witnesses including himself and closed the evidence 6 years after the evidence of the respondent had concluded. During the evidence the execution file was called and the documents thereon including the warrant of possession were proved. The witness Smt. Nirmala Devi was known to deceased Ganga Prasad and could have been examined by him before the evidence was closed. She was not examined as a witness. Ganga Prasad died only in 1999 i.e. 5 years after his evidence was closed. During this period he did not considered it appropriate to approach the court for examination of Smt. Nirmala Devi. It is only after the death of Ganga Prasad and substitution of the petitioners as his legal representatives that a number of applications were filed which according to the observation of the learned Civil Judge were for delaying the disposal of the suit. The petitioners are seeking permission of the court to examine Smt. Nirmala Devi as a witness. Rule 17A of Order 18 CPC being relevant is reproduced as under:-

"Where a party satisfied the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just"

9. It is clear form this provision that the court has discretion to allow a party to produce additional evidence which it could not produce at the time it was leading its evidence. But the party must satisfy the court that (1) it could not produce that evidence after exercise of due diligence or (2) that the evidence which is sought to be produced was not within the knowledge of the said party or (3) for any other good reason it could not be produced. One of the essential condition for allowing the application for additional evidence as such is that the parties should not have been negligent or should not have been in the knowledge of the new evidence or could not have produced it despite due diligence before his own evidence concluded. In the instant case Ganga Prasad had knowledge of the allegation which have been made against Smt. Nirmala Devi or which appeared in the report of the bailiff in the execution proceeding since all the evidence had been produced in his presence. Therefore, it cannot be said that Smt. Nirmala Devi was not in the knowledge of the defendant Ganga Prasad or she could not have been produced by the deceased defendant before his evidence was completed. The evidence of the defendant was closed in this case in the year 1994. Since then it is pending for hearing of final arguments. Ganga Prasad had died 5 years after that. The petitioners now want to reopen the evidence by calling Smt. Nirmala Devi delay the disposal of the case. No good and cogent reason has been given as to why Smt. Nirmala Devi should be allowed to be examined at this stage.

10. The judgment in Khuda Bux and another (supra) and Sukhdev Singh and others(Supra) supports the argument of the respondent that the petitioners are not entitled to produce additional evidence.

For the reasons stated above I ma satisfied that the learned Civil Judge has not committed error of jurisdiction, illegality or material irregularity in the exercise of the jurisdiction which warrants interference by this court. The revision petition has no merit. It is dismissed.