Full Judgment Text
2007:BHC-OS:8561-DB
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 2304 OF 2007
IN
APPEAL NO. 376 OF 2007
IN
NOTICE OF MOTION NO. 1245 OF 2006
IN
EXECUTION APPLICATION NO. 405 OF 2006
IN
AWARD (LODGING NO.77 OF 1998)
M/s. Sylvester and Company, )
having their office at Sylvester Building, )
20, Shahid Bhagat Singh Road, Fort, )
Mumbai-400 023. ).. Appellants
(Orig. Respondents)
versus
M/s. A. Infrastructure, )
having their registered office at P.O. 311025, )
Hamirgarh, Bhiwara, Rajasthan and at their )
Mumbai office at Rajan House, Appasaheb )
Marathe Marg, Prabhadevi, Mumbai-400 025 )..Respondents
Mr. D.D. Madon, Senior Advocate, instructed by M/s. Thakore Jariwala
& Associates, for the appellants in support.
Mr. Pir Moiuddin, instructed by M/s. Paras Kuhad & Associates, for the
respondents.
CORAM : SWATANTER KUMAR, C.J. &
SMT. RANJANA DESAI, J.
Judgment reserved on : July 02, 2007
Judgment delivered on: July 19, 2007
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-2-
JUDGMENT (Per Swatanter Kumar, C.J.):
th
A memorandum dated 14 July, 1994, was signed between
the parties to the present appeal. The memorandum provided that the
disputes between the parties shall be resolved by any Chamber of
Commerce as named therein including Bombay Chamber of
th
Commerce. This was so provided vide letter dated 20 October,1994
addressed to the Bombay Chamber of Commerce. The proceedings in
the arbitration commenced between the parties in the year 1994 itself
as one Shri R.K. Tanna was appointed as sole arbitrator and first date
th
of arbitration hearing was fixed as 15 September,1995. During the
pendency of these proceedings, the Arbitration Act, 1940 was repealed
th
and on 27 January, 1996, the Arbitration and Conciliation Act, 1996
came into force. In terms of Section 85 of the new Act, according to the
appellants, the proceedings would be deemed to have continued under
the provisions of the 1940 Act. Without any right having been exercised
by the parties, as it is the case of the appellants, the arbitration
th
proceedings culminated into an Award dated 9 June, 1997. On the
basis of this award, the respondents commenced execution
proceedings which, according to the appellants, were illegal.
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-3-
2. The claimants sought the execution of the award and as
more than two years had lapsed from the date of the award, notice
under Order 21 Rule 22 of the Code of Civil Procedure, 1908, was
taken out. No reply affidavit was filed in that notice by the respondents
but later another Notice of Motion being Notice of Motion No. 1245 of
2006 in Execution Application No. 405 of 2006 was filed by the
appellants stating therein that the award would be deemed to have
been passed under the provisions of the 1940 Act and without specific
consent of the parties, the proceedings could not have continued or be
treated in law as proceedings under the new Act. The award, therefore,
was not executable as a decree in terms of the provisions of the Act of
1996. Some other objections were also taken which were rejected by
th
the learned single Judge vide order dated 9 March, 1997 and Notice
of Motion No. 1245 of 2006 taken out by the respondents was made
th
absolute. Aggrieved from the order dated 9 March, 2007, the
appellants have filed the present appeal.
3. During the pendency of this appeal, the appellants took out
two notices of motion being Notice of Motion Nos. 2304 of 2007 and
2115 of 2007. The former being an application under Order 41 Rule 27
for permission to lead additional evidence and the latter praying for an
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-4-
order of injunction restraining the respondents in the appeal from taking
th
any execution proceedings in furtherance to the award dated 9
June,1997 and stay of all further proceedings in Execution Application
No. 405 of 2006.
4. Arguments at some length were addressed by the learned
counsel appearing for the parties in relation to the question whether the
provisions of the old Act would continue to control the rights and
obligations of the parties or whether such rights were governed by the
provisions of the Arbitration Act, 1996.
5. One of the principal submissions on behalf of the appellants
was that they should be permitted to lead additional evidence as they
could not produce the documents now annexed to the application
because of their non-availability and for a bona fide mistake. It is also
stated that the papers were with different counsel and as a result of
change of counsel, the omission occurred resulting in serious prejudice
to the appellants. It is further their contention that once the documents
are permitted to be taken on record and read in evidence, in that event,
the judgment under appeal would have to be necessarily set aside.
While opposing this motion, the respondents contended that no cause,
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-5-
much less sufficient cause, has been shown for non-production of
these documents which, according to the respondents, are not even
admissible in evidence. It is also contended that the documents could
have been produced by the appellants by exercise of due diligence. In
fact, they also wanted to file counter documents to suggest that the
parties had specifically agreed and participated in the arbitration
proceedings without protest as they were the proceedings under the
1996 Act. The counsel for the appellants, while relying upon the
judgment of the Supreme Court in the case of Sunder Dass vs. Ram
Parkash , AIR 1977 SC 1201, contended that the decree itself is a nullity
and as such the executing court ought to have examined the
correctness of the judgment and decree and ought not to have treated
the award as a decree and enforced the same as a decree under the
provisions of the 1996 Act.
6. It is a settled rule of procedural law that if an applicant
satisfies the basic requirements as contemplated under Order 41 Rule
27 of the C.P.C , then the Court should be inclined to admit additional
evidence and particularly when such evidence has relevance and can
help the Court in fully and finally determining the matter in controversy.
We even could have taken the documents on record and proceeded to
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-6-
decide the appeal on merits, but there is a specific objection raised on
behalf of the respondents in regard to the admissibility of these
documents in evidence. They have questioned the correctness of the
documents itself. The documents sought to be produced with a prayer
for them to be admitted in evidence relate to certain Memoranda of
Understanding executed between the parties, letter from the Chamber
th th
of Commerce dated 15 September, 1995, minutes dated 20
December, 1996, written submissions filed by the parties and objections
st
dated 21 July, 1997 in regard to additional claims. In fact, the letter
th
dated 14 July, 1994, annexed with the list of documents filed by the
appellants has also been relied upon and filed even in the reply filed
by the respondents as well. Ex facie, the relevancy of these documents
can hardly be questioned. These are the documents which have a
bearing on the matter. No doubt, these documents were in power and
possession of the appellants and by exercise of due diligence, these
documents could have been produced on record, but the reason given
in the application under consideration is that there was change in
counsel of the appellants at the execution stage itself and, therefore,
the documents could not be placed on the record of the executing
Court. The new advocate was appointed after the notice issued by the
Court under Order 21 Rule 22 was served upon them and this was a
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-7-
bona fide error or a mistake which occurred despite exercise of due
diligence by the appellants.
7. At this stage, it may be appropriate to refer to the principles
governing the application under the provisions of Order 41 Rule 27. In
the case of Hukam Chand vs. Phool Chand and others , 1998 (1) PLR
822, the Court discussed various judgments on the subject and held as
under:
“The applicant could not have produced these
documents inspite of exercise of any amount of
diligence. It is not a case where the applicant can be
faulted on the ground of delay, laches or even the
negligence, intentional or otherwise. The provisions of
Order 41 Rule 27 of the Code primarily require that the
evidence which can be permitted to be produced even at
the appellate stage, upon satisfaction of the well settled
conditions and contentions stipulated under the relevant
provisions of the Code are satisfied, such evidence
should be permitted to be adduced rather than declining
such a request. The Hon'ble Supreme Court of India in a
very recent case titled as Jaipur Development Authority
Smt. Kailash Wati Devi,
vs. JT 1997 (7) SC 643 while
setting aside the judgment of the High Court in declining
the additional evidence at the appellate stage in second
appeal, permitted the evidence to be taken on record
even during the pendency of the Special Leave Petition.
The following observations of the Hon'ble Supreme
Court need to be noticed here:-
“All that is required is that the conditions
mentioned in the body of the sub-rule must be
proved to exist. It is not permissible to
restrict the sub-clause (aa) for the benefit of
only those who have adduced some evidence
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-8-
in the trial court.
In the result, the Judgment of the
High Court is set aside and the objection to
the maintainability or the application is
overruled, it will not be for the High Court to
examine the application of the appellant on
merits and decide the same in accordance
with law. Appeal is allowed as stated above.
There will be no order as to costs.”
The provisions of Order 41 Rule 27 of the Code must
be read in conjunction with provisions of the Order 18
Rule 17-A and order 18 Rule 2 of the Code. The object of
such provisions is to permit the parties to adduce
complete evidence in support of their case and to record
such evidence so as to completely adjudicate the
dispute between the parties and specially where such
evidence is necessary for giving an effective and
complete relief to the parties. No provisions of the Code
can be read in isolation. All provisions must be
harmoniously construed so as to achieve the basic object
of this procedural law i.e. To give expeditious, effective
and complete justice to the parties to a suit. In this
regard, reference can be made to the case of Hazara
Singh and another Bachan Singh and others,
vs. Civil
Revision No. 3723 of 1996 decided on 21.1.1998
decided by this Court wherein relying upon various
judgments of this Court, it was held as under:-
“ The consistent view of this Court in the above
judgments is that the additional evidence of the
document(s) the genuinity of which is not in doubt,
additional evidence of such documents specially where it
will help the Court in effectively adjudicating the matter,
should not be denied.”
At this stage it may also be appropriate to refer to the
Banwari vs. Nagina
decision of this Court in the case of
Civil Revision No. 4287 of 1997, decided on 6.2.1998.
The learned counsel for the petitioner has relied upon the
judgments in the cases of Weston Electronics Limited vs.
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-9-
M/s. Chand Radio and others, (1998-1) P.L.R . 691; Ved
Parkash Saini Mohinder Lal,
versus (1993-3) P.L.R . 395
and Arjan Singh versus Jagdish Kaur and another
(1990-2) P.L.R 319 to further argue that the provisions
relating to production of additional evidence should be
construed liberally so as to met the ends of justice.
There is no doubt about these judgments. The various
Benches of this Court had allowed production of
additional evidence, though certainly some negligence
was attributable to the parties. These judgments are
certainly of some help to the applicant and the other
passed by the learned First Appellate Court appears to
be in consonance with these settled principles.”
“In the present case the learned First Appellate Court
has rightly commented upon the relevancy of the
documents in question and the application cannot be
said to be lacking in bona fides. The pleadings of the
same parties in relation to the subject matter of the
present suit are certainly documents which would
ultimately have a bearing on the matters in issue in the
present case. The genuinity of these documents can
hardly be doubted because they form part of judicial
record in Suit No. 670 of 1991. If the reference is being
made to the pleadings of the non-applicant, it is beyond
understanding as to what prejudice would be caused to
the non-applicant, because it is his own documents
admittedly relating to the same property. No matter from
which point of view this case is examined, the impugned
order cannot be said to be an order which can be
permitted as an order passed in excess of jurisdiction
vested in the Court. The order does not suffer from any
jurisdictional or other error apparent on the face of the
record which would justify interference by this Court in
its revisional jurisdiction”
8. We have already noticed that the purpose of the procedural
law is not to frustrate the rights of the parties but the law is primarily
intended to achieve the ends of justice and fully and finally decide the
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-10-
controversy between the parties. In the present case, the documents
were with the Counsel and there was change of counsel and whereafter
because of a bona fide error the same could not be filed in the
executing Court. Thus, the case of the appellants does not fall within
the scope of the expression “exercise of due diligence” and the mistake
is not attributable to the appellants. In fact, the earlier counsel did not
even file reply to the Notice issued by the Court under Order 21 Rule
22. In these circumstances, we are of the considered view that it
would neither be just nor fair that the appellants should be denied the
opportunity of placing these documents and have adjudication of
their rights in accordance with law. The documents thus can be
permitted to be taken on record and leave can be granted to the
appellants to lead additional evidence, of course, subject to
determination of the objections raised by the respondents in
accordance with law. There has been some delay on the part of the
appellants in making the submission before the Court in relation to
prayer for leading additional evidence for which the other party can
always be compensated by awarding costs. We are also of the
considered view that no prejudice or irreparable loss is being caused to
the respondents herein. In fact, as already noticed, they are also
relying partially on the documents sought to be placed by the appellants
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-11-
on record.
9. For the reasons aforesaid, the Notice of Motion is made
absolute in terms of prayer clause (a).
10. The inevitable consequence of the above discussion is that
Notice of Motion No. 2115 of 2007 has been rendered infructuous and
is dismissed as such. The judgment under appeal is consequently set
aside and the matter is remitted to the executing Court for being
proceeded further in accordance with law, subject to payment of Rs.
5,000/- as costs. Costs being conditional to the leading of the
additional evidence, in the event the documents are not placed on
record and costs are not paid within four weeks from today, the benefit
accruing to the appellants under this order shall be deemed to have
been withdrawn and the present appeal would stand dismissed. The
st
parties are directed to appear before the executing court on 21
August, 2007, where the executing Court may proceed with the matter
in accordance with law.
CHIEF JUSTICE
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-12-
SMT. RANJANA DESAI, J.
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-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 2304 OF 2007
IN
APPEAL NO. 376 OF 2007
IN
NOTICE OF MOTION NO. 1245 OF 2006
IN
EXECUTION APPLICATION NO. 405 OF 2006
IN
AWARD (LODGING NO.77 OF 1998)
M/s. Sylvester and Company, )
having their office at Sylvester Building, )
20, Shahid Bhagat Singh Road, Fort, )
Mumbai-400 023. ).. Appellants
(Orig. Respondents)
versus
M/s. A. Infrastructure, )
having their registered office at P.O. 311025, )
Hamirgarh, Bhiwara, Rajasthan and at their )
Mumbai office at Rajan House, Appasaheb )
Marathe Marg, Prabhadevi, Mumbai-400 025 )..Respondents
Mr. D.D. Madon, Senior Advocate, instructed by M/s. Thakore Jariwala
& Associates, for the appellants in support.
Mr. Pir Moiuddin, instructed by M/s. Paras Kuhad & Associates, for the
respondents.
CORAM : SWATANTER KUMAR, C.J. &
SMT. RANJANA DESAI, J.
Judgment reserved on : July 02, 2007
Judgment delivered on: July 19, 2007
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-2-
JUDGMENT (Per Swatanter Kumar, C.J.):
th
A memorandum dated 14 July, 1994, was signed between
the parties to the present appeal. The memorandum provided that the
disputes between the parties shall be resolved by any Chamber of
Commerce as named therein including Bombay Chamber of
th
Commerce. This was so provided vide letter dated 20 October,1994
addressed to the Bombay Chamber of Commerce. The proceedings in
the arbitration commenced between the parties in the year 1994 itself
as one Shri R.K. Tanna was appointed as sole arbitrator and first date
th
of arbitration hearing was fixed as 15 September,1995. During the
pendency of these proceedings, the Arbitration Act, 1940 was repealed
th
and on 27 January, 1996, the Arbitration and Conciliation Act, 1996
came into force. In terms of Section 85 of the new Act, according to the
appellants, the proceedings would be deemed to have continued under
the provisions of the 1940 Act. Without any right having been exercised
by the parties, as it is the case of the appellants, the arbitration
th
proceedings culminated into an Award dated 9 June, 1997. On the
basis of this award, the respondents commenced execution
proceedings which, according to the appellants, were illegal.
::: Downloaded on - 26/06/2024 07:32:48 :::
-3-
2. The claimants sought the execution of the award and as
more than two years had lapsed from the date of the award, notice
under Order 21 Rule 22 of the Code of Civil Procedure, 1908, was
taken out. No reply affidavit was filed in that notice by the respondents
but later another Notice of Motion being Notice of Motion No. 1245 of
2006 in Execution Application No. 405 of 2006 was filed by the
appellants stating therein that the award would be deemed to have
been passed under the provisions of the 1940 Act and without specific
consent of the parties, the proceedings could not have continued or be
treated in law as proceedings under the new Act. The award, therefore,
was not executable as a decree in terms of the provisions of the Act of
1996. Some other objections were also taken which were rejected by
th
the learned single Judge vide order dated 9 March, 1997 and Notice
of Motion No. 1245 of 2006 taken out by the respondents was made
th
absolute. Aggrieved from the order dated 9 March, 2007, the
appellants have filed the present appeal.
3. During the pendency of this appeal, the appellants took out
two notices of motion being Notice of Motion Nos. 2304 of 2007 and
2115 of 2007. The former being an application under Order 41 Rule 27
for permission to lead additional evidence and the latter praying for an
::: Downloaded on - 26/06/2024 07:32:48 :::
-4-
order of injunction restraining the respondents in the appeal from taking
th
any execution proceedings in furtherance to the award dated 9
June,1997 and stay of all further proceedings in Execution Application
No. 405 of 2006.
4. Arguments at some length were addressed by the learned
counsel appearing for the parties in relation to the question whether the
provisions of the old Act would continue to control the rights and
obligations of the parties or whether such rights were governed by the
provisions of the Arbitration Act, 1996.
5. One of the principal submissions on behalf of the appellants
was that they should be permitted to lead additional evidence as they
could not produce the documents now annexed to the application
because of their non-availability and for a bona fide mistake. It is also
stated that the papers were with different counsel and as a result of
change of counsel, the omission occurred resulting in serious prejudice
to the appellants. It is further their contention that once the documents
are permitted to be taken on record and read in evidence, in that event,
the judgment under appeal would have to be necessarily set aside.
While opposing this motion, the respondents contended that no cause,
::: Downloaded on - 26/06/2024 07:32:48 :::
-5-
much less sufficient cause, has been shown for non-production of
these documents which, according to the respondents, are not even
admissible in evidence. It is also contended that the documents could
have been produced by the appellants by exercise of due diligence. In
fact, they also wanted to file counter documents to suggest that the
parties had specifically agreed and participated in the arbitration
proceedings without protest as they were the proceedings under the
1996 Act. The counsel for the appellants, while relying upon the
judgment of the Supreme Court in the case of Sunder Dass vs. Ram
Parkash , AIR 1977 SC 1201, contended that the decree itself is a nullity
and as such the executing court ought to have examined the
correctness of the judgment and decree and ought not to have treated
the award as a decree and enforced the same as a decree under the
provisions of the 1996 Act.
6. It is a settled rule of procedural law that if an applicant
satisfies the basic requirements as contemplated under Order 41 Rule
27 of the C.P.C , then the Court should be inclined to admit additional
evidence and particularly when such evidence has relevance and can
help the Court in fully and finally determining the matter in controversy.
We even could have taken the documents on record and proceeded to
::: Downloaded on - 26/06/2024 07:32:48 :::
-6-
decide the appeal on merits, but there is a specific objection raised on
behalf of the respondents in regard to the admissibility of these
documents in evidence. They have questioned the correctness of the
documents itself. The documents sought to be produced with a prayer
for them to be admitted in evidence relate to certain Memoranda of
Understanding executed between the parties, letter from the Chamber
th th
of Commerce dated 15 September, 1995, minutes dated 20
December, 1996, written submissions filed by the parties and objections
st
dated 21 July, 1997 in regard to additional claims. In fact, the letter
th
dated 14 July, 1994, annexed with the list of documents filed by the
appellants has also been relied upon and filed even in the reply filed
by the respondents as well. Ex facie, the relevancy of these documents
can hardly be questioned. These are the documents which have a
bearing on the matter. No doubt, these documents were in power and
possession of the appellants and by exercise of due diligence, these
documents could have been produced on record, but the reason given
in the application under consideration is that there was change in
counsel of the appellants at the execution stage itself and, therefore,
the documents could not be placed on the record of the executing
Court. The new advocate was appointed after the notice issued by the
Court under Order 21 Rule 22 was served upon them and this was a
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-7-
bona fide error or a mistake which occurred despite exercise of due
diligence by the appellants.
7. At this stage, it may be appropriate to refer to the principles
governing the application under the provisions of Order 41 Rule 27. In
the case of Hukam Chand vs. Phool Chand and others , 1998 (1) PLR
822, the Court discussed various judgments on the subject and held as
under:
“The applicant could not have produced these
documents inspite of exercise of any amount of
diligence. It is not a case where the applicant can be
faulted on the ground of delay, laches or even the
negligence, intentional or otherwise. The provisions of
Order 41 Rule 27 of the Code primarily require that the
evidence which can be permitted to be produced even at
the appellate stage, upon satisfaction of the well settled
conditions and contentions stipulated under the relevant
provisions of the Code are satisfied, such evidence
should be permitted to be adduced rather than declining
such a request. The Hon'ble Supreme Court of India in a
very recent case titled as Jaipur Development Authority
Smt. Kailash Wati Devi,
vs. JT 1997 (7) SC 643 while
setting aside the judgment of the High Court in declining
the additional evidence at the appellate stage in second
appeal, permitted the evidence to be taken on record
even during the pendency of the Special Leave Petition.
The following observations of the Hon'ble Supreme
Court need to be noticed here:-
“All that is required is that the conditions
mentioned in the body of the sub-rule must be
proved to exist. It is not permissible to
restrict the sub-clause (aa) for the benefit of
only those who have adduced some evidence
::: Downloaded on - 26/06/2024 07:32:48 :::
-8-
in the trial court.
In the result, the Judgment of the
High Court is set aside and the objection to
the maintainability or the application is
overruled, it will not be for the High Court to
examine the application of the appellant on
merits and decide the same in accordance
with law. Appeal is allowed as stated above.
There will be no order as to costs.”
The provisions of Order 41 Rule 27 of the Code must
be read in conjunction with provisions of the Order 18
Rule 17-A and order 18 Rule 2 of the Code. The object of
such provisions is to permit the parties to adduce
complete evidence in support of their case and to record
such evidence so as to completely adjudicate the
dispute between the parties and specially where such
evidence is necessary for giving an effective and
complete relief to the parties. No provisions of the Code
can be read in isolation. All provisions must be
harmoniously construed so as to achieve the basic object
of this procedural law i.e. To give expeditious, effective
and complete justice to the parties to a suit. In this
regard, reference can be made to the case of Hazara
Singh and another Bachan Singh and others,
vs. Civil
Revision No. 3723 of 1996 decided on 21.1.1998
decided by this Court wherein relying upon various
judgments of this Court, it was held as under:-
“ The consistent view of this Court in the above
judgments is that the additional evidence of the
document(s) the genuinity of which is not in doubt,
additional evidence of such documents specially where it
will help the Court in effectively adjudicating the matter,
should not be denied.”
At this stage it may also be appropriate to refer to the
Banwari vs. Nagina
decision of this Court in the case of
Civil Revision No. 4287 of 1997, decided on 6.2.1998.
The learned counsel for the petitioner has relied upon the
judgments in the cases of Weston Electronics Limited vs.
::: Downloaded on - 26/06/2024 07:32:48 :::
-9-
M/s. Chand Radio and others, (1998-1) P.L.R . 691; Ved
Parkash Saini Mohinder Lal,
versus (1993-3) P.L.R . 395
and Arjan Singh versus Jagdish Kaur and another
(1990-2) P.L.R 319 to further argue that the provisions
relating to production of additional evidence should be
construed liberally so as to met the ends of justice.
There is no doubt about these judgments. The various
Benches of this Court had allowed production of
additional evidence, though certainly some negligence
was attributable to the parties. These judgments are
certainly of some help to the applicant and the other
passed by the learned First Appellate Court appears to
be in consonance with these settled principles.”
“In the present case the learned First Appellate Court
has rightly commented upon the relevancy of the
documents in question and the application cannot be
said to be lacking in bona fides. The pleadings of the
same parties in relation to the subject matter of the
present suit are certainly documents which would
ultimately have a bearing on the matters in issue in the
present case. The genuinity of these documents can
hardly be doubted because they form part of judicial
record in Suit No. 670 of 1991. If the reference is being
made to the pleadings of the non-applicant, it is beyond
understanding as to what prejudice would be caused to
the non-applicant, because it is his own documents
admittedly relating to the same property. No matter from
which point of view this case is examined, the impugned
order cannot be said to be an order which can be
permitted as an order passed in excess of jurisdiction
vested in the Court. The order does not suffer from any
jurisdictional or other error apparent on the face of the
record which would justify interference by this Court in
its revisional jurisdiction”
8. We have already noticed that the purpose of the procedural
law is not to frustrate the rights of the parties but the law is primarily
intended to achieve the ends of justice and fully and finally decide the
::: Downloaded on - 26/06/2024 07:32:48 :::
-10-
controversy between the parties. In the present case, the documents
were with the Counsel and there was change of counsel and whereafter
because of a bona fide error the same could not be filed in the
executing Court. Thus, the case of the appellants does not fall within
the scope of the expression “exercise of due diligence” and the mistake
is not attributable to the appellants. In fact, the earlier counsel did not
even file reply to the Notice issued by the Court under Order 21 Rule
22. In these circumstances, we are of the considered view that it
would neither be just nor fair that the appellants should be denied the
opportunity of placing these documents and have adjudication of
their rights in accordance with law. The documents thus can be
permitted to be taken on record and leave can be granted to the
appellants to lead additional evidence, of course, subject to
determination of the objections raised by the respondents in
accordance with law. There has been some delay on the part of the
appellants in making the submission before the Court in relation to
prayer for leading additional evidence for which the other party can
always be compensated by awarding costs. We are also of the
considered view that no prejudice or irreparable loss is being caused to
the respondents herein. In fact, as already noticed, they are also
relying partially on the documents sought to be placed by the appellants
::: Downloaded on - 26/06/2024 07:32:48 :::
-11-
on record.
9. For the reasons aforesaid, the Notice of Motion is made
absolute in terms of prayer clause (a).
10. The inevitable consequence of the above discussion is that
Notice of Motion No. 2115 of 2007 has been rendered infructuous and
is dismissed as such. The judgment under appeal is consequently set
aside and the matter is remitted to the executing Court for being
proceeded further in accordance with law, subject to payment of Rs.
5,000/- as costs. Costs being conditional to the leading of the
additional evidence, in the event the documents are not placed on
record and costs are not paid within four weeks from today, the benefit
accruing to the appellants under this order shall be deemed to have
been withdrawn and the present appeal would stand dismissed. The
st
parties are directed to appear before the executing court on 21
August, 2007, where the executing Court may proceed with the matter
in accordance with law.
CHIEF JUSTICE
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SMT. RANJANA DESAI, J.
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