Judgment:
ORDER
V. Bhaskara Rao, J.
1. This revision petition is filed against the order in I.A. No. 305/1996 in OS. No. 26/1988 on the file of Subordinate Judge, Chodavaram, dated 1-2-1997, dismissing the petition filed under Section 151 of the Code of Civil Procedure to reopen the suit to enable the revision petitioner-plaintiff to file the Will Deed on which the suit is based.
2. The facts and circumstances giving rise to this revision petition are that she filed a suit for recovery of rent claiming that the property originally belonged to her father and that he bequeathed the same in her favour under a Will. The suit is being resisted by the respondent-defendant, who is contesting the Will. The revision petitioner closed her evidence on 19-6-1995 and thereafter the respondent closed his evidence on 18-9-1995 and arguments were also addressed. When the matter was at the stage of reply arguments of the revision petitioner, this petition has been filed stating that the aforesaid Will was filed in O.S. No. 231/1988 on the file of District Munsif, Narsipatnam, and hence it could not be filed in this suit (O.S. No. 26/1988). It is further stated that the above Will was referred to an Expert at the instance of the respondent in I.A. No. 35/1994 in O.S. No. 38/1989 on the file of Subordinate Judge, Chodavaram, for his opinion on 24-6-1994 and subsequently that Will was received together with the opinion of the Expert. Hence, she filed this petition seeking reopening of the suit to enable her to file the Will. The petition was resisted by the respondent by filing a counter. The material averments are denied. It is asserted that the respondent filed his written statement as long back as in 1988 and that both parties had closed their evidence in 1995 and the suit has been coming up for arguments since January, 1996 and it was posted for reply of the revision petitioner on 19-12-1996. It is asserted that the revision petitioner wilfully failed to produce the document to prove her title though it was available with her at all times and hence this petition is meant for filling up the lacunae in her case and it is not permissible to reopen the suit to enable the revision petitioner to produce her evidence at the stage of reply arguments.
3. No evidence was adduced by both the parties. On a consideration of the rival contentions, the learned Subordinate Judge retraced the history of litigation and held that in spite of two specific issues viz., issue No. 1, which relates to the title of the revision petitioner, and issue No. 5, which relates to the maintainability of the suit for want of succession certificate, the revision petitioner did not choose to move her little finger to produce the alleged Will. It is further hold that there are no tenable or justifiable reasons for the failure of the revision petitioner to produce the Will which is supposed to be in her custody only. Thus, he dismissed the petition with costs.
4. Aggrieved by the above findings and dismissal of the petition, the present revision petition is filed by the plaintiff.
5. Mr. C. Ramachandra Raju, learned Counsel for the revision petitioner contended that the plaint averments contained reference to the Will and that the same is based on the Will. He pointed out that there are two more suits and that the Will was filed in one of those suits and in the other suit, the respondent herein got the Will referred to an Expert on 24-6-1994 for opinion by filing I.A. No. 35/1994 in O.S. No. 38/1989 and the said Will has been returned to the lower Court subsequently along with the opinion of the Expert and therefore, it cannot be said that the Will was in the custody of the revision petitioner or that there were no tenable or justifiable reasons for his failure to file the same. He further pointed out that no prejudice will be caused to the respondent if the Will is permitted to be filed. Whereas Smt. A. Chaya Devi, learned Counsel for the respondent contended that the relevant dates of the Will being sent to the Expert and it being received back along with the opinion are not stated and no valid reasons are assigned for the failure on the part of the revision petitioner to file the Will earlier even though the matter has been pending since 1988 and issues were settled as long back as 1988. Thus, she supported the impugned order and vehemently opposed the revision petition.
6. Although the petition is filed invoking Section 151 of the Code of Civil Procedure, there is a specific provision which is attracted to a situation like this. It is Order XVIII Rule 17-A of the Code of Civil Procedure. It would be beneficial to extract the above provision for ready reference.
'Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.'
The above provision contemplates two contingencies when some more evidence can be permitted to be adduced. One is that, that evidence was not within the knowledge of the party and second is that the same could not be produced by him at the time when he was leading his evidence. If the Court is satisfied that one of these contingencies exist, it may permit that party to produce that evidence at a later stage. Turning to the facts of the case, it is at the stage of reply arguments. It is no doubt true that evidence of both sides was closed in the year 1995 and arguments were also addressed earlier. The revision petitioner filed her affidavit showing that the Will in question was filed in O.S. No. 231/1988 on the file of District Munsif, Narsipatnam, and thereafter it was referred to an Expert in O.S. No. 38/1989 on the file of Subordinate Judge, Chodavaram. Evidently it was not in her custody, but it was within her knowledge. Therefore, first limb of Rule 17-A is not applicable.
7. It is now to be seen whether there is material to satisfy the Court that she could not produce that Will at the time when she was leading her evidence, so as to fall within the second limb. It is true that the dates pointed out by Smt. Chaya Devi are not mentioned in the affidavit of the revision petitioner, but it does not mean that the basic fact gets obliterated. The basic fact is that the Will in question was filed in some other suit and it was not in her custody and it was referred to an Expert. Evidently it has been received sometime prior to the filing of this petition. It is note worthy that O.S. No. 38/1989 in which that document was referred to an Expert is also of the same Court. When there is a reference to that suit, nothing prevented the learned Subordinate Judge to verify whether the above averment was true or not. If that was done, there would not have been any difficulty to satisfy whether the above reason is genuine or not. Rule 17-A contemplates satisfaction of the Court and if the party concerned is able to satisfy the Court that the said evidence could not be produced at the time when that party was leading his evidence, nothing more is required . I am fortified in my view by a judgment of this Court reported in Sreedhar Finance v. J. Lingayya, : 1996(2)ALT979 , wherein it is held :
'Order 18 Rule 17 of CPC gives power to the Court to recall at any stage of the suit any witness who has been examined and to put such questions to him as the Court thinks fit. This is entirely different from Rule 17-A of C.P.C. which enables either party to file petition for reopening the suit and to recall any witness for adducing additional evidence including marking of additional documents. The object of introduction of Rule 17-A is to minimise the invoking of Order 41, Rule 27 of C.P.C. at the appellate stage'.
Added to it, it is not in dispute that the revision petitioner had already pleaded in the plaint that her father bequeathed the suit property under that Will and that the respondent herein is contesting the Will and hence, it cannot be said that they are not aware of the Will in question or that they would be taken by surprise if the Will is now introduced in evidence. In these circumstances, I am of the view that there is sufficient material to satisfy the Court that the revision petitioner could not produce the Will at the time when she was leading her evidence and she has made out a case, to fall within the four corners of Rule 17-A of the Code of Civil Procedure.
8. It is no doubt true that some more diligence would have avoided a situation like this and probably there would not have been an occasion for the revision petitioner to approach this Court for a relief of this nature. The diligence that ought to have been shown was to state various dates so that the lower Court would have verified with reference to those dates whether the revision petitioner was in a position to produce that Will earlier or not. For that reason, I am of the view that she must be visited with costs. There are no hard and fast rules for quantification of costs in such case. Hence, an amount of Rs. 500/- would be adequate.
9. For the above reasons, this revision petition is allowed and the impugned order is set aside subject to payment of Rs. 500/- as costs as a condition precedent for permitting her to produce the Will Deed in question. Consequently the petition I.A. No. 305/1996 stands allowed.