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DEEPAK GUPTA, J. –

The above two revision petitions are being disposed of by this common order, as they arise out of the same suit and challenge two separate orders both dated 12.11.2021 passed by the learned Civil Judge (Junior Division), Kharar.

2. In CR No.3211 of 2021, the petitioner-plaintiff challenges the order, whereby its application under Order VI Rule 17 CPC for amendment of the plaint has been declined. In CR No.3215 of 2021, the challenge is to the order, whereby the plaintiff's application under Section 151 CPC seeking permission to place on record Jamabandis for the years 1973-74 and 1978-79, either as additional evidence or in rebuttal, has been dismissed.

3. Briefly stated, the suit pertains to the rights claimed by the plaintiff-Gurudwara in respect of the property in dispute and the controversy regarding the identity/legal status of the plaintiff as well as certain earlier proceedings concerning the property.

4. During pendency of the suit, the plaintiff sought amendment of the plaint under Order VI Rule 17 CPC, inter alia, to substitute/correct the name of the plaintiff and to incorporate pleadings challenging certain earlier judgments and compromise proceedings as fraudulent and collusive. The plaintiff asserted that the proposed amendment was necessary for determination of the real controversy. The defendants opposed the amendment, inter alia, on the ground that the facts and proceedings sought to be incorporated were very old, were within the plaintiff's knowledge from the beginning and that the amendment was sought at the fag end of the trial without due diligence.

5. The plaintiff also moved an application under Section 151 CPC seeking permission to place on record Jamabandis for the years 1973-74 and 1978-79, either as additional evidence or by way of evidence in rebuttal. The plaintiff's case was that the revenue record was relevant to establish its claim and that the substantive relief ought not to be defeated on a technical ground. The defendants opposed the prayer, contending that the documents were neither newly discovered nor unavailable to the plaintiff and could, and ought to, have been produced in affirmative evidence.

6. The learned Trial Court, noticing that the suit had reached the stage of rebuttal evidence/final arguments, declined both applications.

7. As regards the amendment, it held that the matters sought to be incorporated related to judgments and compromise proceedings of the years 1979 and 2003 and could have been raised before commencement of trial and hence, the requirement of due diligence under the proviso to Order VI Rule 17 CPC was not satisfied. It also noticed that the proposed declaratory relief was prima facie beyond the period of limitation.

8. In the other order, the learned Trial Court held that the Jamabandis were not documents, which had subsequently come to the plaintiff's knowledge and that the plaintiff had every opportunity to produce them after the framing of issues. It further held that the documents could not be brought on record as evidence in rebuttal because rebuttal evidence is confined to issues on which the onus lies upon the defendant.

9. The plaintiff has challenged both orders by separate revision petitions, initially invoking Section 115 CPC. Ld. Counsel for the petitions, however, makes a prayer that, in view of the amendment to Section 115 CPC, these be treated as petitions under Article 227 of the Constitution of India.

10. Taking up the objection regarding the maintainability of the revisions under Section 115 CPC, the impugned orders are interlocutory orders passed during pendency of the suit and their reversal would not have the effect of finally disposing of the suit. In view of the restricted revisional jurisdiction under the amended Section 115 CPC, the petitions, as originally instituted under the said provision, are not maintainable.

11. Ld. Counsel for the petitioner, however, has specifically prayed that the petitions be treated as proceedings under Article 227 of the Constitution of India. Such conversion is permissible in an appropriate case. The Hon’ble Supreme Court in Col. Anil Kak v. Municipal Corporation, Indore, (2005) 12 SCC 734, approved conversion of a revision filed under Section 115 CPC into a proceeding under Article 227 of the Constitution.

12. Accordingly, in order to avoid multiplicity of proceedings and keeping in view the nature of the challenge, both the petitions are treated as petitions under Article 227 of the Constitution of India.

13. Having considered the matter on merits, however, no ground for interference is made out.

14. So far as the amendment application is concerned, the suit is admittedly at the fag end of the proceedings. The judgments and compromise sought to be brought into challenge by way of amendment admittedly relate to the years 1979 and 2003. The learned Trial Court has recorded a categorical finding that the facts sought to be incorporated were not matters, which came into existence during the pendency of the suit or which could not have been raised before commencement of trial.

15. The proviso to Order VI Rule 17 CPC mandates that after commencement of trial an amendment can be permitted only when, despite due diligence, the party could not have raised the matter before commencement of trial. The material placed before this Court does not disclose any circumstance demonstrating such due diligence. The plea that the amendment became necessary because of the subsequent proceedings or because the earlier counsel had not appropriately pleaded the matter cannot, in the facts noticed by the learned Trial Court, overcome the statutory requirement of due diligence.

16. Besides, the proposed amendment is not merely explanatory. It seeks to introduce a challenge to earlier judgments and compromise proceedings and also seeks alteration/substitution of the plaintiff's name/legal identity. The learned Trial Court has further noticed that the relief sought by way of amendment is, prima facie, beyond the prescribed period of limitation.

17. The question of limitation may ultimately depend upon the pleadings and evidence, particularly if fraud or subsequent discovery is relied upon. Nevertheless, when an amendment is sought at such an advanced stage to introduce a substantive declaratory challenge to proceedings dating back several decades, the absence of any satisfactory explanation as to why the matter could not have been raised earlier assumes considerable significance. The learned Trial Court, therefore, cannot be said to have exercised its discretion either arbitrarily or contrary to the provisions of Order VI Rule 17 CPC.

18. The second revision pertains to the Jamabandis for the years 1973-74 and 1978-79. The plaintiff sought permission to place these documents on record either as additional evidence or in rebuttal. The learned Trial Court has noticed that the documents were not newly discovered and that the plaintiff had every opportunity to produce them while leading evidence in affirmative after the issues had been framed.

19. The deletion of Order XVIII Rule 17-A CPC does not mean that the Court is wholly powerless to permit production of evidence at a later stage. The inherent power under Section 151 CPC survives in appropriate cases, where the evidence could not, despite due diligence, be produced earlier and its production is necessary for just adjudication of the controversy. However, such power is to be exercised sparingly and cannot be invoked to overcome negligence or to fill up lacunae.

20. No such exceptional circumstance is made out here. The Jamabandis relate to the years 1973-74 and 1978-79 and, according to the impugned order, were within the plaintiff's knowledge and could have been produced during its affirmative evidence. Thus, the case does not fall within the narrow category where the inherent power under Section 151 CPC may appropriately be invoked to permit additional evidence at a later stage.

21. Nor can the documents be introduced as evidence in rebuttal merely because the plaintiff considers them necessary to meet the defence. Evidence in rebuttal is confined to the issues in respect of which the onus lies upon the opposite party. A party cannot reserve evidence which was required to establish its own case and subsequently introduce it in rebuttal after the opposite party has concluded its evidence. This principle has also been noticed by the learned Trial Court with reference to Sardara Singh v. Baljit Singh, 2010 (2) RCR (Civil) 14.

22. In the present case, the revenue record is sought essentially to establish the plaintiff's own case regarding its identity/legal status and the foundation of its claim. It cannot, therefore, be characterised as evidence in rebuttal merely because the defendants had raised an objection regarding the plaintiff's identity in their pleadings.

23. This Court, while exercising jurisdiction under Article 227, does not sit as a Court of appeal over every interlocutory order passed by the Trial Court. Interference is warranted only where the subordinate Court has acted without or in excess of jurisdiction, failed to exercise jurisdiction vested in it, or has acted in a manner so perverse or contrary to settled principles of law as to occasion manifest injustice. The impugned orders do not disclose any such infirmity.

24. The plea that refusal of the amendment or production of the revenue record would result in the plaintiff being non-suited on a technicality cannot, in the facts of the case, justify any interference. Procedural law undoubtedly exists to advance the cause of justice; but procedural discretion cannot be exercised in disregard of the express requirement of due diligence under Order VI Rule 17 CPC, or the settled limitations governing rebuttal and additional evidence.

25. Consequently, both CR No.3211 of 2021 and CR No.3215 of 2021 are hereby dismissed.

26. It is clarified that nothing contained in this order shall be construed as an expression of opinion on the merits of the substantive controversy in the suit. The learned Trial Court shall decide the suit independently on the basis of the pleadings and evidence already validly on record. Pending application(s), if any, stand disposed of.

Petitions dismissed.

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