Can the court ask the defendant to make his final argument before the plaintiff?

 In the present case, I am concerned with Rule 2, which lays down the general rule that the one, which has right to begin, must "address the Court generally on the whole case". It further provides that the party beginning may then "reply generally on the whole case". A careful reading of Rule 2 clearly shows that the said Rule proceeds on the principle that the party, which has involved in the evidence first must address the Court last. Thus, on a plain reading of the provisions of the said Rule, it is the defendant, who has to open the argument first.

9. As already indicated, Rule 2 of Order 18 clearly stipulates that the party giving the evidence first has the right to address the Court last and the defendant having led his evidence last, he is required to address the Court first.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

A.P. SHAH, J.

Gajanan Dhondu Dalvi Vs. Trishul Construction Company & Ors.

Civil Revision Application No. 45 of 1995

9th February, 1995

Citation:  1996(3) ALL MR 167

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Whether the court should reject plaint of eviction suit at the stage of final argument?

Assailing the order, it is contended by the learned counsel for the petitioner that the rent agreement dated 01.01.2014 does not reveal that he is tenant in Flat No. 606. He submits that it simply reads “TWO ROOM SET on 6th FLOOR, OUT of SOCIETY” in the layout plan of Vaidant Height, Nand Puri-B, Near Mahima Group Apartment, Guru Circle, Pratap Nagar, Sanganer, Jaipur. 

5. It is trite that for consideration of the application under Order 7 Rule 11 CPC, averments in the petition/plaint only are relevant and defence of the respondent/defendant is not to be seen at this stage.

6. Flat No. 606 is specifically mentioned in the eviction application under tenancy of the petitioner which, as per the order impugned dated 19.02.2020, has not been disputed even by the petitioner. Even otherwise also, the effect of the absence of flat number in the rent agreement is to be examined by the learned Rent Tribunal, in case any such objection exists in the reply filed by the petitioner. The learned counsel for petitioner failed to point out any averment or omission in the eviction application which may invite application of the provisions of Order 7 Rule 11 CPC. Even otherwise also, the application filed by the petitioner under Order 7 Rule 11 CPC does not reveal any reason for filing it at such belated stage when the case was fixed for the final arguments. In these circumstances, it cannot be denied that the application was filed with malafide intention to delay the disposal of the eviction application. The order dated 19.02.2020 does not suffer any illegality or perversity warranting interference of this Court under Article 227 of the Constitution of India.

In the High Court of Rajasthan

(Before Mahendar Kumar Goyal, J.)

Anil Joshi  Vs Beejal Chopra 

S.B. Civil Writ Petition No. 4602/2020

Decided on August 24, 2020

Citation: 2020 SCC OnLine Raj 1256

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When application for taking additional evidence on record filed at appellate stage should be decided at the time of final hearing of appeal?

 Insofar as the situations relatable to clauses (a) and (aa) are concerned, in our considered opinion, application for production of additional evidence can be filed by the party at any stage of the appeal, even before the stage of final hearing of the appeal. In coming to this view, we have in our minds cogent reasons. The main reason is that the party knows that either with respect to the situation under clause (a) or with respect to a situation under clause (aa), the trial Court erred in not allowing the additional evidence and unless the additional evidence is produced the party's case cannot be properly put across. There is no reason for such a party to wait for the final hearing of the appeal because that would be a sheer wastage of time and the party would be well advised in such a situation to file an application for leading the additional evidence at the initial, rather earliest stage of the appeal itself. There can also be situations where the party understands its case very well and finds that unless the additional evidence is brought on the record the appeal cannot be effectively adjudicated upon. There can be numerous other reasons why a party would genuinely feel convinced about the imperative need of leading additional evidence at the very initial stage of the appeal because the party would be genuinely convinced that unless additional evidence was produced, the appeal by itself, based on the record of the trial Court would be imperfect or incomplete causing prejudice to the interests of the party.

10. In contradistinction to clauses (a) and (aa), as far as clause (b) is concerned, its ambit and scope is quite distinct because the expression "to enable it to pronounce the judgment" occurring in clause (b) clearly suggests that only when the Appellate Court has started hearing of the appeal and in the course of the hearing of the appeal feels that it requires any additional document to be produced or any additional witness to be examined, it may call for additional evidence. Their might be actually situations and cases where even though the appeal Court finds that it would be able to pronounce the Judgment on the basis of the record of the trial Court as it was, it might still consider that in the interests of justice something which remained obscure should be filled up so that it can pronounce the judgment in a more satisfactory manner. The requirement has to be of the Court and the requirement is always to enable the Court to pronounce the judgment for any substantial cause. In either case the requirement has to be of the Court. This is the plain meaning and clear interpretation of clause (b) and based on such interpretation, in our considered view, the legitimate occasion for the exercise of this jurisdiction is not any stage prior to the hearing of the appeal but the stage of the final hearing of the appeal when on examining the evidence as it stands some inherent lacuna or defect became apparent to the Appeal Court. There might be situations where the Appeal Court in the process of examining the evidence while hearing the appeal finds that some omission needs to be supplied and in such a situation it can ask for additional evidence to supply such an omission with a view to enabling it to pronounce the judgment.

14. The Division Bench has held that if an application is filed under clause (a) or (aa), the same has to be decided at any stage of the appeal even before the stage of the final hearing of the appeal and it would be prudent if such an application is decided at earlier stage. However, the Division Bench held that the powers under clause (b) is to be exercised where even though the Appellate Court finds that it would be able to pronounce the judgment on the basis of the record of the trial Court as it was, it might still consider that in the interest of justice something which remained obscure should be filled up, so that it can pronounce the judgment in a more satisfactory manner. It has further been held that the requirement has to be of the Court and the requirement is always to enable the Court to pronounce the judgment or for any substantial cause. It has been further held that the legitimate occasion for the exercise of this jurisdiction is not any stage prior to the hearing of the appeal but the stage of the final hearing of the appeal. We are in respectful agreement with the view taken by the Division Bench of Himachal Pradesh High Court. The requirement under clause (a) or (aa) for leading additional evidence is that of a party where for the reasons in clause (a) or (aa) could not file evidence at the stage of the trial. However, requirement under clause (b) is that of the Court where it finds that additional evidence is required for the purpose of enabling it to pronounce the Judgment or for any other substantial cause. We, therefore, find that the application filed under Order 41, Rule 27(1)(a) or (aa) could be decided at the stage prior to the hearing of the appeal. However, when the Court finds that such an evidence is necessary for pronouncing the judgment or for any other substantial cause, the same has to be done at the stage of pronouncement of the Judgment. No doubt that the learned counsel for the tenant is justified in saying that the learned Single Judge vide order dated 3rd May, 2011 itself had directed that the application for leading additional evidence is to be decided first and thereafter decide the appeal on merits. However, it appears that the learned Single Judge did not find the benefits of going through the Judgment of the Apex Court in the case of Union of India v. Ibrahim (supra) inasmuch as the said Judgment has been delivered on 17th July, 2012 whereas the order was passed by the learned Single Judge in the first round on 3-5-2011. However, in view of the Judgment of the Apex Court in the case of Union of India (supra) we will have to hold that exercise of the jurisdiction by the learned Appellate Court in first deciding the application under Order 41, Rule 27(1)(b) and subsequently deciding the appeal on merits was contrary to the settled principle of law. As such the findings of the learned Appellate Court as well as the learned Single Judge in that regard would not be sustainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

L.P.A. Nos. 458 of 2012 and 242 of 2013 in W.P. No. 2808 of 2012

Decided On: 18.01.2014

Hasanate Taheriyyah Fidayyiah Vs.  Mahesh

Hon'ble Judges/Coram:

B.R. Gavai and A.S. Chandurkar, JJ.

Citation: 2014(2) Mh.L.J. 884,

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When court should reject application for amendment of pleading?

 Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the Code of Civil Procedure virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

7. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1669 of 2019

Decided On: 14.02.2019

 M. Revanna Vs.  Anjanamma (Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Mohan M. Shantanagoudar, JJ.

Citation: 2020(1) MHLJ 143

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When court should reject application for amendment of plaint at the stage of final argument?

 In so far as the application for amendment under Order VI Rule 17 of the said Code filed by the petitioner is concerned, it is not in dispute that the original prayer is for mandatory injunction for removal of the suit structure. The respondents had filed a detailed written statement opposing the said relief. The learned trial Judge had accordingly framed the issues considering the pleadings filed by both the parties. The parties thereafter led oral evidence. The witness examined by both the parties were extensively cross-examined by the opponents. It is not in dispute that by the said application for seeking amendment under Order VI Rule 17 of the said Code, the petitioner had prayed for inclusion of prayer for possession of the said property.

13. A perusal of the order passed by the learned trial Judge clearly indicates that the learned trial Judge has after considering the record and after considering several judgments relied upon by both the parties has rejected the said application for amendment on the ground that there was no due diligence either pleaded or proved by the petitioner in the application filed by the petitioner under Order VI Rule 17 of the said Code for seeking amendment to the plaint. The said application has been also rejected on the ground that there would be a change of cause of action. The matter has already been placed for final argument. In my view, the learned trial Judge has rightly rejected the application for seeking amendment at the stage of final argument and that also the amendment by which the original cause of action would be changed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

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Whether application for recasting of issues is maintainable after six years of framing of issues at stage of final argument?

 In so far as the impugned order dated 10th July 2018 passed by the learned trial Judge rejecting the application for recast of the issue no. 1 is concerned, it is not in dispute that the issues were already framed by the learned trial Judge on 15th September 2012. After framing of five issues including the said issue no. 1 which was sought to be recast by the petitioner, the petitioner had already filed an affidavit of evidence as far back as on 2nd August 2012. The said application for recast of issue no. 1 was filed after rejection of the application filed by the petitioner for seeking amendment of the plaint i.e. by an order dated 25th April 2018. Both the parties have already led evidence based on the issues framed by both the parties. The matter is now placed for final argument. Learned counsel for the respondent nos. 1 to 5 submits that he has no objection if the issue no. 1 is partly modified in so far as the issue of possession is concerned. Statement made by the learned counsel for the respondent nos. 1 to 5 is accepted.

18. A perusal of the order passed by the learned trial Judge clearly indicates that the said application below Exhibit-77 has been rejected by a reasoned order. The suit was already posted for final argument and has been adjourned from time to time on one or the other grounds. The learned trial Judge has also considered the pleadings filed by both the parties in this regard and has held that the said issue no. 1 was framed after considering the pleadings. The petitioner never raised any objection when the said issue no. 1 was framed by the trial Court as far back as on 15th September 2012 till filing of an application on 5th June 2018.

19. In so far as the submission of the learned counsel for the petitioner that the issue could be recast at any stage prior to the decree passed by the learned trial Judge under Order XIV Rule 5 is concerned, in my view, since the issue was framed properly after considering the pleadings filed by both the parties which was not challenged by the petitioner for last 6 years, the petitioner could not be allowed to file such application and after the order passed by the learned trial Judge placing the matter on board for final argument. The entire evidence is already led by both the parties based on the original issue no. 1. In these circumstances, no interference is warranted with the orders passed by the learned trial Judge in this petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8717 of 2018

Decided On: 10.09.2018

 Archana Ashok Amburle Vs. Arpana Shankar Dudham and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2019(2) MHLJ 67

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When husband is not entitled to produce Audio CD as additional Evidence in Divorce proceeding?

Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

8. Leaving everything aside, once pleadings adduced on record by the husband itself suggest that audio CD sought to be produced on record by way of additional evidence was very much in existence before commencement of trial or cross-examination of wife or her family member, learned Court below ought not to have allowed the application having been filed by the husband, seeking therein permission to lead additional evidence that too at the stage of arguments because it would amount to filling up of lacuna.

9. Basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

10. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ram Rati versus Mange Ram(Dead) through legal representatives and others, MANU/SC/0260/2016 : 2016(11) Supreme Court Cases 296, wherein it has been held as under:-

"11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers to the court to make orders for the ends of justice or to prevent abuse of the process of the Court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either such motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The Power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. "No prejudice is caused to either party" is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the Court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."

11. It is quite apparent from the aforesaid exposition of law that though it is discretionary power of Court to allow parties to adduce on record additional evidence at any stage of the trial, but such power is required to be used sparingly so that it is not abused. The Hon'ble Apex Court has specifically held that in case Court decides to invoke this provision, it should see that the trial is not unnecessarily protracted on that ground. In the judgment (supra) Hon'ble Apex Court has held that "no prejudice is caused to either party is also not a permissible ground to invoke Rule 17 and as such, there is no force in the arguments of learned counsel representing the husband that no prejudice would be caused in case order passed by the District Judge is allowed to sustain, rather it would help to ascertain the truth. This Court finds from the record that matter is repeatedly being adjourned on one pretext or the other on the request of learned counsel representing the parties. Hence, this Court having taken note of the fact that since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.

12. Consequently, in view of the discussion made hereinabove, the present petition is allowed and impugned order dated 17.07.2017, passed by the learned Court below is quashed and set-aside.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 330 of 2017

Decided On: 21.12.2018

 Honey Johar Vs. Ramnik Singh Johar

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2019 HP 39

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Whether court can frame issue at the time of final argument?

Mr. Das, learned counsel for the petitioner contends that the impugned order of the learned trial Judge is not only illegal, but it is vitiated on account of material irregularity in exercise of jurisdiction. After the evidence had been closed and the parties were proceeding with the argument, the learned trial Judge had no jurisdiction to direct an additional issue to be raised and further evidence to be taken.

Order 14, Rule 1 C. P. C. provides--

"(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) x x x

(4) x x x

(5) At the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) x x x "

Rule 5 provides:--

"The court may, at any time before passing a decree, amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed."

5. Thus it is clear that the duty to frame issues is put on the court and power inheres in the court to amend existing issues or frame additional issues on such terms as the court thinks fit. In exercise of this power, the court while the arguments had begun, framed an additional issue and thought it fit to allow parties to lead evidence on the additional issue as it was necessary for determining the matter in controversy. The jurisdiction exercised by the court is in terms of Rule 5 (1) of Order 14 of the Code.

IN THE HIGH COURT OF ORISSA

Civil Revn. No. 377 of 1969

Decided On: 21.09.1970

Kishorelal Gupta Vs. Devilal Kalwar alias Gowalla

Hon'ble Judges/Coram:

Ranganath Misra, J.

Citation: AIR 1971 Orissa 191

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Factors to be considered by court while deciding application for production of documents at the stage of final argument

 Coming to the merits of these contentions, the first contention raised by the learned counsel for the petitioner with regard to the maintainability of the additional evidence merits rejection at the very out set, in vie.w of the recent judgment rendered by this Court in the case of Chandgi v. Mehar Singh, Civil Revision No. 2134 of 1997 decided on 12-3-1998 (reported in MANU/PH/0254/1998) wherein it has been held that the application for additional evidence, can be moved at any stage that is till the Court concerned becomes functus offtcio of the matter before it and signs the judgement finally determining the issues involved in the suit.

"The concept of additional evidence has been given wider dimension in the recent judgment of Hon'ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi MANU/SC/0819/1997 : (1997) 117 Pun LR 880 : AIR 1997 SC 3243) (SC), where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41, C.P.C. if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex pane decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer , but the same was allowed by Hon'ble Apex Court.

The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under Sub-rule (4) of Rule 2 of Order 18 cannot be curtailed by reading the provisions Of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to further cause of justice rather than frustrate the same. Non-production of documents after exercise of due diligence appears to be very foundation of filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (Supra).

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 1595 of 1993 and Civil Misc. No. 6697-C.I.I. of 1994 (O&M)

Decided On: 19.03.1998

 Mam Raj Vs. Smt. Sabiri Devi and Ors.

Hon'ble Judges/Coram:

Swatanter Kumar, J.

Citation: AIR 1999 P & H 96

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Whether defendant can be permitted to examine doctor to ascertain mental condition of plaintiff at the stage of final argument ?

 In view of the own admission of the plaintiff/petitioner No. 2 in the plaint that she had instituted the suit for cancellation of sale deed in the year 2012 being next friend of plaintiff No. 1 as noted above, this Court is of the view that no further enquiry was required to be made by the Court under Order XXXII, Rule 1 to 15 of the Code of Civil Procedure. The scope of enquiry under the provisions of Order XXXII, Rule 1 to 15 is limited for the purpose of appointment of next friend to represent a plaintiff. Plaintiff No. 1 is properly represented by his wife. As per the plaint averments, plaintiff No. 2 (wife) is capable of protecting the interest of the plaintiff No. 1 (her husband) and her interest in the subject-matter of suit cannot be said to be adverse to that of the plaintiff No. 1.

17. In view of the above discussion, the argument of learned Counsel for the petitioner that the enquiry required to be made under Order XXXII, Rule 15 (Rule 1 to 15) of the Code of Civil Procedure has not been done by the Court, below, is wholly misconceived.

 In the instant case, the Appellate Court has considered the prayer of the appellant to adduce additional oral evidence of Doctor at the stage of final argument in appeal and has opined that the documentary evidences filed by the appellant during the course of hearing in the appeal had already been taken on record vide order dated 6.7.2017. In view of the available evidence taken on record, there was no further requirement of additional oral evidence of Doctor.

25. Further, an enquiry has already been made by the First Appellate Court regarding the mental condition of Sri Vinod Kumar (plaintiff No. 1) who was present before it on 6.7.2017. The exercise of discretion by the First Appellate Court at the stage of final disposal of the appeal in holding that no further evidence was required, cannot be said to be an improper exercise of judicial discretion.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Petition No. 4468 of 2017 and Matters Under Article 227 No. 3194 of 2017

Decided On: 28.07.2017

Vinod Kumar  Vs. Tarachand

Hon'ble Judges/Coram:

Sunita Agarwal, J.

Citation: AIR 2018(NOC) 703 ALL

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Whether a party can be permitted to file document at the stage of argument?

It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The Court is enjoined under Sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellant, but they have obtained certified copies from the revenue authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy and when the Court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 C.P.C. the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect may have, be considered in deciding the issues arose in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The Trial Court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2254 of 1994

Decided On: 28.01.1994

 Billa Jagan Mohan Reddy and Anr. Vs.  Billa Sanjeeva Reddy and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and B.L. Hansaria, JJ.

Citation: (1994) 4 SCC 659

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Whether court should allow amendment of plaint in partition suit for inclusion of all joint family property?

It is undisputed that the petitioner has preferred application Exhibit 89 before the trial Court on 27.4.2015. The matter was in the midst of final arguments before the trial Court. The petitioner has indicated through the application such immovable properties which are situated at Jaunpur and which have been inadvertently left out from the suit. It was, therefore, prayed before the trial Court that the suit would suffer an irreparable damage for not including these properties, especially when the suit has been filed for partition and separate possession. It was, therefore, submitted that the amendment be permitted.

It is not in dispute that a suit for partition and separate possession, with regard to ancestral property involves all such blood relations, who could have a legal share in the property. It is also not in dispute that such a suit could be dismissed on account of non-inclusion of all the properties since the suit cannot be entertained for partial partition. Issue as to whether some of the properties included in the suit are self acquired properties of any of the defendants or plaintiffs can be gone into by the trial Court.
In the light of the same, I find that the ends of justice would be met by permitting the petitioner to amend the plaint so as to include all the properties which have been left out and which are situated in Uttar Pradesh. The second respondent is at liberty to file an Additional Written Statement, if felt necessary.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 7029 of 2015

Decided On: 29.07.2015

 Rajbahaddur Jiyaram Yadav Vs.Prakash and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2016(1) ALLMR 550

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Whether magistrate can direct further investigation after taking cognizance of offence?

 In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove.

Resultantly, direction for further investigation issued by the Magistrate on the application of the informant at the stage of final arguments of the case under Ss. 406, 420, 426, 467, 468, 471, 477B and 120B IPC, held to be rightly set aside by High Court, particularly when considering aspect of delay request of the informant could not be entertained by the Magistrate

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and Amitava Roy, JJ.)

Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & Ors. 

Criminal Appeal No. 1171 of 2016

Decided on February 2, 2017

Citation: 2017 SCC OnLine SC 86
This judgment is overruled in following caselaw. Please see the post 

Supreme Court: Magistrate Can Invoke Power U/S 156(3) CrPC Even At Post-Cognizance Stage 

https://www.lawweb.in/2019/10/supreme-court-magistrate-can-invoke.html

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What is duty of court if he is allowing production of voter list at stage of final argument?

Exhibit Nos. 6, 7 and 8 are the certified copies of voter
list of village-Kudahansa of the year 1973, 1980 and 1983
respectively. Those were admitted into evidence and marked as
exhibits at the stage of the argument. Thus, defendants had no
opportunity to adduce any rebuttal evidence to the same or crossexamine
the witnesses of the plaintiffs in that regard. Exhibits 6, 7
and 8 are public documents and admissible in evidence. But that by
itself does not prove the entries made in it. Onus is on the plaintiffsto prove the entries made in Exhibits 6, 7 and 8. The Court has
discretion under Order 13 Rule 1 C.P.C. to accept any document 
produced belatedly if good cause is shown to its satisfaction. This
Court in the case of Bhikari Charan Patra vs Basanti Bewa And
Ors., reported in AIR 1985 Ori 49 held as under:-
11. Whereas the object of Order 13, Rule 1 is
to lay down the stage when a party shall file
documentary evidence so that each knows on
what document the other seeks to rely and gets
ready for the trial, Order 13, Rule 2 makes
provision for meeting certain contingencies. The
object of the rules is not to penalize the party
but to secure a fair trial of the case, Where
Order 13, Rule 2 is invoked mala fide, where the
move is to cause delay or is vexatious, the cause
shown cannot be held to be good cause shown to
the satisfaction of the Court. The doors of the
discretionary jurisdiction should be closed.
Where, however, the document is vital and
would assist the Court in coming to a decision,
the doors should not be shut out.”
Where however, documentary evidence is sought to be introduced,
the Court has duty to scrutinize the cause shown by the party
seeking introduction of documentary evidence before exercising the
discretion and also to give opportunity to the adversary to explainthe documents so produced by adducing rebuttal evidence. This view
gets support from decisions of this Court in the case of Keshaba
Padhan alias Sukru and others Vs. Mst. Padma Padhani
(having died) Upasi Gurandi and others, reported in 1976 (1)
CWR 154 and Property Association of Baptist Churches Private
Limited and another Vs. State of Orissa and others, reported in
1984 (I) OLR 166.11
In the instant cases, no good reason has been assigned
by learned trial Court to accept Exts. 6, 7 and 8 at the stage of
argument of the suit. it is also not clear as to whether any prayer for
seeking leave of the Court was made to adduce further documentary
evidence at a belated stage. In addition to it, neither any opportunity
was given to the defendant to cross-examine the plaintiffs on Exts. 6,
7 and 8 nor they were allowed to adduce rebuttal evidence on the
same.
Further, the entries in Exts. 6, 7, and 8 does not by
itself conclusively prove that plaintiff No.1 was the son of Dubraj
through his first wife. Learned Civil Judge has not made any
endeavour to find out as to whether Basi has ever married to Dubraj.
There is also no reliable evidence available on record to come to such
conclusion. When the relationship of Basi and Dubraj is not proved,
the plea that plaintiff No.1 was the son of Dubraj through Basi
cannot be accepted. In that view of the matter, the answer to Issue

No.5 is erroneous and cannot be accepted.

HIGH COURT OF ORISSA: CUTTACK
 F.A. NO. 174 OF 1988
Hema Majhi (dead) represented
by LRs and others 

 -VersusDubraj
Majhi …
 Date of Judgment: 20.04.2016
P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)477 Orissa

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Whether court can allow amendment of plaint at the stage of final argument?

In a concurring judgment ((1909) 33 Bom 644),
Beaman, J. observed:
"The practice is to allow all amendments,
whether introducing fresh claims or not, so long as
they do not put the other party at a disadvantage
for which he cannot be compensated by costs."
His Lordship proceeded to state:
"In my opinion two simple tests, and two
only, need to be applied, in order to ascertain
whether a given case is within the principle. First,
could the party asking to amend obtain the same
quantity of relief without the amendment? If not,
then it follows necessarily that the proposed
amendment places the other party at a
disadvantage, it allows his opponent to obtain more
from him than he would have been able to obtain
but for the amendment. Second, in those
circumstances, can the party thus placed at a

disadvantage be compensated for it by costs? If not,
then the amendment ought not, unless the case is so
peculiar as to be taken out of the scope of the rule,
to be allowed."
 It is, therefore, to be considered as to whether the suit of the
petitioner should be permitted to proceed under such legal defects or
whether the said defects could be done away with before it is too late.
As has been held by the Apex Court in the above referred judgments,
appropriate costs could be imposed on the petitioner, to be awarded to
the respondent so as to reduce the rigors of litigation and the hardships
that are caused to the respondent.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7029 OF 2015

RAJBAHADDUR JIYARAM YADAV Vs PRAKASH @ PAPPU JIYARAM YADAV AND OTHERS

CORAM : RAVINDRA V. GHUGE, J.
Dated: July 29, 2015
Citation; 2016(1) ALLMR 550,2016(2)MHLJ639

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Whether production of documents can allowed even at the stage of final argument?

 It has been held by the supreme Court in the case of Billa Jagan Mohan Reddy & Anr. v. Billa Sanjeeva Reddy & Ors., MANU/SC/0748/1994 : (1994) 4 SCC 659, that even at the stage of final arguments unimpeachable documents can be allowed to be filed. In the present case, surely counterfoils of the deposit slips of the defendant/respondent No. 1 bank are unimpeachable documents and they can be allowed to be filed and proved in view of the ratio of the judgment of the Supreme Court in the case of Billa Jagan Mohan Reddy (supra).

IN THE HIGH COURT OF DELHI

C.M. (M) No. 1072/2011 and C.M. No. 6284 of 2012

Decided On: 29.10.2014

Appellants: Tola Ram & Sons
Vs.
Respondent: State Bank of India

Hon'ble Judges/Coram:Valmiki J. Mehta, J.

 Citation: 215(2014)DLT5

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