- (1.) THIS application in revision which is directed against an order of the Tehsildar Jamwa-ramgarh, dated 28.8.1956 raises a question of law, which is easy to state, but a little difficult to answer. It has arisen in the following circumstances. In a suit which was pending in the court of the Tehsildar relating to the recovery of arrears of rent the plea taken by the defendants was that they had discharged their liability by paying rent to a third person who had given himself out to be the landlord. The third person was impleaded as a party to the suit. When he stepped into the witness-box in order to give evidence on behalf of the defendants the plaintiffs who were in possession of a certain document executed by him wished to confront him with it. The learned Tehsildar did not permit them to do so on the short ground that under Order 13, Rule 1, it was incumbent upon them to produce this document at the first hearing of the suit and as they had failed to do so it could not be received at any subsequent stage of the proceedings unless good cause was shown to the satisfaction of the court for its non-production in compliance with the requirement of rule 1.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. A preliminary objection was raised by the opposite-party to the effect that this application in revision was not maintainable as the aggrieved party could lodge an appeal against the order of the learned Tehsildar. Failure on their part to do so debarred them from pursuing their remedy by way of revision. This preliminary objection is clearly untenable as the Board has consistently taken the view that in cases where gross injustice is likely to occur owing to failure on the part of a court to construe and apply the provisions of law correctly the Board should in the exercise of its revisional powers interfere in order to avoid that result. Each case would depend upon its own facts and it is discretionary with the Board whether or not to interfere in a particular case. The discretion, as we have pointed out above, is exercised in cases where there has been either a violation of express provisions of the law which is likely to defeat the ends of justice or gross injustice has taken place owing to failure on the part of a court to construe the provisions of law and apply them correctly. The general rule that special and extraordinary powers of revision will not be exercised in favour of interference, where another remedy is open to a party which it has failed to pursue is not an inflexible one. It was contended on behalf of the applicant that the learned Tehsildar had not construed the provisions of O. 13, Rr. 1 and 2 correctly. It was also contended that he had failed to apply his mind to the provisions of O. 7, R. 18 (2) which clearly lay down that nothing in that rule would apply to documents produced for cross-examination of the defendants' witnesses or in answer to any case set up by the defendants or handed to a witness merely to refresh his memory. It was urged that it was not possible for the plaintiffs to anticipate the defence case and mention in the list such documents as may from an answer to such a defence, nor need they mention in the list documents to be produced for the cross examination of the defendants' witnesses or for refreshing the memory of a witness. It was, therefore, argued that the learned Tehsildar was not justified in disallowing the plaintiffs to confront a witness with the said document in order to show that his evidence which was palpably false, as it ran counter to the contents of the document, could not be relied upon. We have carefully considered these contentions. We are clearly of opinion that they should prevail. It is too late in the day to contend that O. 13, R. 1 applies to documents of the kind specified in O. 7, R. 18(2). It is not difficulty to visualize why the provisions of O. 13, R. 1 would not apply to such documents. It may not be necessary to produce such documents when a witness in the course of cross-examination may admit that he had executed a document whose contents contradicted his evidence in material particulars. Again it is not possible for a plaintiff to anticipate the case set up in defence by the defendants. If any authority is needed for the proposition set out above it will be found in 9 A. I. R. 1922 Patna page 569. In this connection a reference may also be made to the provisions of sec. 145 of the Indian Evidence Act. They run as follows - "A witness may be cross-examined as to the previous statement made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved ; but, if it is intended to contradict him by the writing, his attention, must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." This section lays down the mode in which a witness may be contradicted and his evidence impeached In the present case, the document in question was intended to establish that on a previous occasion the third person had collected rent on behalf of the plaintiffs and he could not, therefore, contend that he was not their agent and could not subsequently set up a title inconsistent with their title. This document would have a material bearing on the fate of the case. For the aforesaid reasons we are on a firm footing when we hold that the learned Tehsildar had not construed and applied the provisions of O.13, R. 1, correctly. We allow the application in revision, set aside the order of the learned Tehsildar, dated 28.8.1956 and direct him to allow the plaintiffs to confront the third person with the document in question in order to contradict his evidence.;