2001(2) ALL MR 375
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M.S. KHANDEPARKAR, J.

Shri Bhupatrai G. Gandhi & Anr. Vs. Shri Chain Thakurdas Nathani

C.R.A. No.1213 of 1998

7th June, 2000

Petitioner Counsel: Shri. R.T.PAREKH

(A) Precedents - Judicial precedents - Ratio of decision - Applicability.

The ratio of a decision is to be applied bearing in mind the facts of the case and point for determination in the particular case wherein the law is said to have been laid down. [Para 11]

(B) Civil P.C. (1908) O.18, Rr.3A and 17-A - Recalling of witness - Recalling plaintiff for identification of documents subsequently produced - Grant of permission by court is legal.

Under Order XVIII Rule 17A of C.P.C. any party to the suit can seek leave of the Court to produce the evidence at a later stage of the suit if such evidence was neither within the knowledge of the party nor could it be produced by the party at the time when the said party was leading his or her evidence. In other words, the provisions contained in Rule 17(A) can be invoked in two circumstances, viz., (i) in case where the party had no knowledge of the evidence prior to the stage at which the party seeks to produce the same or (ii) where the party could not produce such a evidence at the time when the party was leading his or her evidence. Undoubtedly, in latter case party will have to disclose sufficient cause for not producing such a evidence at the time the party was leading evidence. [Para 8]

No doubt a party can seek leave of the court to examine himself after other witnesses on his behalf are examined but it is only in exceptional cases. The case in hand, was not a case of lack of knowledge of the documents but it was the inability or impossibility to identify the documents by the plaintiff when his deposition was recorded earlier. The occasion to identify the documents arose only after the said documents were placed on record by the officer who was in lawful possession thereof. In facts and circums of case, it could be held that the lower court had exercised its jurisdiction judiciously and properly while allowing the application of plaintiff under O.18, R.17A. [Para 11,13]

Cases Cited:
Prabhakar Yeshwant Ranade vs. Gajanan Narayan Adivarekar, 1991 (4) Bom.C.R. 551 [Para 7]
Madhubhai Amthalal vs. Amthalal Nanalal, AIR (34) 1947 Bombay 156 [Para 7]


JUDGMENT

JUDGMENT :- Heard both the Advocates for the parties. Rule. Rule made returnable forthwith by consent.

2. This revision application arises from the order dated 14th August 1998 passed by the trial court, whereby the respondent plaintiff has been allowed to examine in relation to the documents which were produced by P.W.4 subject to payment of costs of Rs.1000/-.

3. The facts in brief relevant for the decision are that the suit has been filed by the respondent for declaration that he is a protected licensee or a deemed tenant in respect of the suit premises and some other reliefs. The petitioners are the landlords and the original defendant No.1 was the original tenant in respect of the suit premises. After the conclusion of the deposition of the respondent plaintiff the officer of the B.E.S.T. was examined for production of certain documents, which included the documents which are permitted to be identified by the plaintiff by the impugned order. In fact, the respondent filed an application dated 8th July 1998 for recalling himself for identifying the said documents. The documents are the forms for the supply of new electricity meter and are stated to have been signed by the plaintiff and some others. The same were produced in the court on 26th June 1998 by the representative of the B.E.S.T. The application was objected to by the petitioners. The trial court by the impugned order, after considering the provisions contained in Order XVIII Rule 17 of the C.P.C. ordered the plaintiff to examine himself to the extent of documents produced by P.W. 4 subject to payment of costs of Rs.1000/-.

4. The impugned order is sought to be challenged firstly on the ground that the trial court had no jurisdiction to recall the witness once he had concluded his evidence except for examination by the court itself in terms of the order XVIII Rule 17 and secondly on the ground that in the facts and circumstances of the case there was no justification for exercise of discretion under Order XVIII Rule 17A to permit the respondent to examine himself to identify the documents in question and thirdly, that the documents permitted to be identified are neither listed in the list of documents nor leave of the court was sought for the same.

5. As regards the first contention that the court had no jurisdiction to recall the witness, except for the examination by the court itself as contained in Order XVIII Rule 17, it is seen that the point does not arise for consideration at all as the impugned order is not passed under Order XVIII Rule 17 of the C.P.C. but the same has been passed under Rule 17A of the said Order XVIII of C.P.C.

6. As regards the second contention, the Rule 17(A) of Order XVIII C.P.C. reads thus :-

"17-A:- Production of evidence not previously known or which could not be produced despite due diligence - Where a party satisfies 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."

7. As regards the second contention, it is sought to be contended that in order to invoke the provisions of the Rule 17A of Order XVIII, the party has to show the evidence which the party seeks to produce was not within the knowledge of the party till the date of the application for leave to produce such evidence is filed. In that connection reliance is placed upon the judgment of the learned Single Judge of this Court in the matter of Prabhakar Yeshwant Ranade Vs. Gajanan Narayan Adivarekar, reported in 1991 (4) Bom.C.R. 551. As regards the improper exercise of discretion, it is contended that the facts on record do not disclose any justification for grant of permission to the respondent to identify the said documents and reliance is placed upon the judgment of the learned Single Judge in the matter of Madhubhai Amthalal Vs. Amthalal Nanalal and Ors., reported in A.I.R. (34) 1947 Bombay 156.

8. Under Order XVIII Rule 17A of C.P.C. any party to the suit can seek leave of the Court to produce the evidence at a later stage of the suit if such evidence was neither within the knowledge of the party nor could it be produced by the party at the time when the said party was leading his or her evidence. In other words, the provisions contained in Rule 17(A) can be invoked in two circumstances, viz., (i) in case where the party had no knowledge of the evidence prior to the stage at which the party seeks to produce the same or (ii) where the party could not produce such a evidence at the time when the party was leading his or her his evidence. Undoubtedly, in a latter case party will have to disclose sufficient cause for not producing such a evidence at the time the party was leading evidence. The learned Judge in the matter of Prabhakar Ranade (supra) was dealing with a situation where the party had no knowledge about the evidence prior to the stage of filing of the application seeking leave to produce such evidence. Facts of the said case clearly disclose that the application was filed by the petitioner therein when the second defendant in the said suit had already been cross examined and after his cross examination was over, certain documents allegedly came to the knowledge of the plaintiff from the files of some of the parties to the proceedings. It was a case where the party could not have produced the evidence at an earlier stage on account of lack of knowledge about the existence of such documents. In the case in hand it is the contention of the respondent that the documents which he wants to identify were not before the court when his deposition was being recorded nor they were in his possession.

9. According to the learned Advocate for the petitioner, it is not a case of inability of the respondent to produce the said documents at the time when his evidence was recorded but in fact it is a case of failure on the part of the respondent to produce the said documents either voluntarily or intentionally at the relevant time. According to the learned Advocate nothing prevented the respondent from producing the said documents by seeking leave of the court when his deposition was in progress to enable him to identify the same. Even though it can be stated that the respondent could have filed such an application seeking permission of the court to examine the officer of the B.E.S.T. prior to examination of the plaintiff and could have got the documents produced on record in order to enable him to identify the same at the time of recording of his deposition, it is to be noted that the Order XVIII Rule 3(A) provides that where a party wishes to appear as witness he shall so appear before any other witness on his behalf has been examined, unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. Therefore a party to the suit when desires to examine himself as witness has to examine himself prior to all other witnesses on his behalf, unless otherwise permitted by the court. In other words it is only in exceptional cases that a party to the suit can seek leave of the court to examine himself after other witnesses on his behalf are examined.

10. It is not the case of the petitioner that the plaintiff was required to prove only the documents in question to justify his claim in the suit. On the contrary there are several other issues on which the plaintiff/respondent was required to lead his evidence. Being so, it cannot be said that there was any justification for the plaintiff in the case in hand to move an application under Order XVIII Rule 3(A) of C.P.C. in order to enable himself to identify the documents in question. It is also a matter of record that the application for summoning the officer of B.E.S.T. to produce documents on record was allowed and accordingly the documents have already been produced on record by the officer of B.E.S.T. after examination of the plaintiff. It is also a matter of record that the said documents were placed on record subject to identification. In order to enable the party to prove evidence which has already been placed on record, it is necessary for the plaintiff to identify the said documents. It is the case of the plaintiff that the said documents were signed by the plaintiff and only he could identify the same. The categorical statement in the application filed by the plaintiff on 8th July 1998 that it is the plaintiff alone who can identify his signature in the form and other particulars, was never disputed by the petitioner.

11. Considering the facts of the case in hand and comparing the same with those of Prabhakar Ranade's case (supra), it is abundantly clear that the decision in the said case is of no assistance to the petitioner. It is to be borne in mind that the ratio of a decision is to be applied bearing in mind the facts of the case and point for determination in the particular case wherein the law is said to have been laid down. In the case of Prabhakar Ranade (supra), it was a case of lack of knowledge of documents prior to the examination of the party to the suit. In the case in hand it is not a case of lack of knowledge of the documents but it was the inability or impossibility to identify the documents by the plaintiff when his deposition was recorded earlier. The occasion to identify the documents arose only after the said documents were placed on record by the officer who was in lawful possession thereof.

12. As regards the third submission that the said documents are neither relied upon nor leave was sought to rely upon such documents was obtained, it is seen that no such objection was raised at any time before the lower court and the same cannot be permitted for the first time in revisional application, besides the document in question are already placed on record after permitting the plaintiff to examine the officer of the BEST to produce the same.

13. As regards the decision in the matte of Madhubhai Amthalal (supra), it rather assists the case of the respondent and justifies the impugned order. The ratio of the decision is to the effect that powers under Order XVIII Rule 17 are of discretionary in nature and they are to be exercised with great care and caution and based on facts and circumstances of each case. The impugned order has been passed under Order XVIII Rule 17(A), but nevertheless, the lower court has exercised its jurisdiction judiciously and properly while allowing the application filed by the respondent.

14. It was also sought to be contended that great prejudice will be caused to the petitioner if the respondent is allowed to identify the said documents at this stage as it would amount to filling up lacunae in the evidence. I do not find any substance in the said contention. In fact that the documents have already been placed on record through the officer of the B.E.S.T. pursuant to the summons issued to such witness. The categorical statement in the application by the plaintiff/respondent herein that the documents bear his signature and the same can be identified by the respondent alone has also not been denied. Besides the petitioners have also been duly compensated.

15. In the circumstances, therefore, there is no scope for interference in the impugned order and the revisional application fails and the same is dismissed. Rule is discharged. No costs.

Revision dismissed.