- (1.) This petition has been filed against the order of the learned Executing Court declining permission to the petitioners to lead additional evidence.
(2.) The respondent had filed a suit for possession of the property in dispute against the father of the petitioners on the ground that he had sold the property to him. This suit was decreed as far back as on 12.03.1986. Thereafter, the execution was filed in the year 1991. The objections were filed by the judgment-debtor through his next friend in which the plea was taken that he was of unsound mind and therefore could not have been sued. In support of the assertion of insanity a Doctor was examined. The judgment-debtor died in the year 2008 whereupon the petitioner and his other siblings were impleaded as legal representatives. They filed the instant application seeking permission to lead additional evidence in the form of yet another doctor on the ground that some prescriptions were discovered from the old record. It was further pleaded that even in the objections it was averred that the judgment-debtor had been of unsound mind since the year 1977 and therefore the additional evidence now proposed to be led could not prejudice the respondent. The learned Executing Court declined the application on the ground that the petitioners had not been able to satisfy the Court about why the said evidence could not be led at the relevant time.
(3.) Learned counsel for the petitioners has argued that the petitioners had no knowledge about the treatment of the judgment-debtor by the second Doctor and as soon as they came to know of the same the application was moved. In this regard he has relied upon the judgment in the matter of K.K. Velusamy v. N. Palanisamy, 2011 86 AllLR 457 wherein the Hon'ble Supreme Court in paragraph Nos.14, 15 and 16 held as follows:- "14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings. 15. The appellant - defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of Rs.150,000, as the respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issues. According to the appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference. 16. 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 nonproduction 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.";