Raunaq Automotive Components ... vs J P S Kanwar
2015 Latest Caselaw 6992 Del

$~34

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 16.09.2015

+       FAO (OS) 524/2015

RAUNAQ AUTOMOTIVE COMPONENTS LTD.                              .... Appellant

                             versus

J P S KANWAR                                                   ..... Respondent

Advocates who appeared in this case:

For the Appellant     :      Mr Amit Singh Chaddha, Sr Advocate with Mr Lalan
                             Sinha and Mr Vineet Sinha, Advocates.

For the Respondent    :      None.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM No.19625/2015 (exemption)

Exemption is allowed subject to all just exceptions.

FAO (OS) 524/2015

1. This appeal is directed against the order dated 10.07.2015 passed

by a learned Single Judge of this Court in OA No.258/2015 which, in

turn, was directed against the order passed by the Joint Registrar on

22.05.2015. The Joint Registrar had rejected the application of the

appellant/plaintiff for leading additional evidence of a witness whose

name was not there in the original list of witnesses. The Joint Registrar

dismissed the said application by the order dated 22.05.2015 after

observing that the application had been filed after five years of the

closure of the evidence in order to fill up a lacuna which was not

permissible. The Joint Registrar specifically noted that the

appellant/plaintiff was well aware of its case and, particularly, the

documents which were required to be proved. Consequently, it was held

that the appellant/plaintiff could not be permitted to reopen the evidence

by placing blame on the counsel.

2. Being aggrieved by the order dated 22.05.2015 passed by the Joint

Registrar, the appellant/plaintiff preferred a chamber appeal being OA

258/2015 which has also been dismissed by the learned Single Judge by

virtue of the impugned order dated 10.07.2015. The learned Single Judge,

agreeing by the conclusion arrived at by the Joint Registrar, held that the

plaintiff could not be permitted to reopen evidence simply by stating that

the earlier counsel had made a slip. It was also observed that, earlier

under Order XVIII Rule 17A of the Code of Civil Procedure, 1908,

additional evidence could be permitted by the Court but the said

provisions had since been deleted. Consequently, the learned Single

Judge took the view that the appellant/plaintiff had not been able to make

out a case for leading additional evidence and that, too, to fill up a lacuna

after five years.

3. The learned senior counsel appearing on behalf of the appellant

submitted that the only reason why the learned Single Judge passed the

impugned order was that the provisions of Order XVIII Rule 17A CPC

had been deleted w.e.f. 01.07.2002. The learned senior counsel submitted

that the deletion of Order XVIII Rule 17A CPC did not mean that the

Court did not have power to allow additional evidence. He submitted that

the Court could very well invoke its inherent jurisdiction under Section

151 CPC for permitting production of such evidence. In support of this

contention, the learned senior counsel placed before us the decision of the

Supreme Court in K.K. Velusamy v. N. Palanisamy : (2011) 11 SCC

275. In the said decision the Supreme Court observed as under:-

"11. There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-

examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

xxxx xxxx xxxx xxxx

13. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments.

Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re- opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

xxxx xxxx xxxx xxxx

19. We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or

permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application."

4. On going through the above observations of the Supreme Court, we

find that the submission made by the learned senior counsel for the

appellant that even though Order XVIII Rule 17A CPC is no longer in the

Statute Book, the Court is not powerless to permit the production of the

additional evidence is correct. However, that is subject to certain

conditions being fulfilled. The Supreme Court made it clear that one of

the reasons for deletion of Order XVIII Rule 17A of the CPC was that no

time interval was now contemplated between the closure of evidence and

the commencement of arguments and, therefore, there was no question of

any event taking place between the closure of evidence and the

commencement of arguments. However, as in the present case and also

indicated in the observations of the Supreme Court, there could be

situations where there is a wide time gap between the closure of evidence

and the commencement of arguments and if something happens in that

interval, subject to the other conditions being satisfied, additional

evidence in respect thereof could be led. The conditions stipulated by the

Supreme Court in the aforesaid decision were that if there was a time gap

between the completion of evidence and hearing of arguments for

whatever reasons, and if in that interval of time, a party came across some

evidence which "he could not lay his hands on earlier", or some evidence

in regard to the conduct or action of the other party "comes into

existence", the Court could exercise its inherent power under Section 151

of the Code and permit the production of such evidence provided it was

relevant and necessary in the interest of justice and subject to such terms

as the Court may deem fit to impose. It was reiterated by the Supreme

Court that if an application to lead additional evidence was filed, inter

alia, to cover up negligence or lacunae, it ought to be rejected "with

heavy costs".

5. The facts of the present case indicate that the evidence which the

appellant/plaintiff seeks to lead at this stage is not some evidence which it

was not aware of or could not lay his hands on earlier. It is also not any

evidence with regard to the conduct of the other party which came into

existence after the closure of evidence. Thus, none of the conditions

specified by the Supreme Court stand satisfied for invoking the Court's

inherent power under Section 151 of the CPC.

6. Consequently, the appeal is dismissed.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J SEPTEMBER 16, 2015 st