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Report No. 163

Q.36. Order 18, rule 17A (Evidence not previously known, etc.)

At present, Order 18, rule 17A of the Code empowers the court to permit a party to produce (at a later stage) evidence which he could riot produce earlier, either because it was not within his knowledge or because it could not be produced when he was leading his evidence. In either case, due diligence must be proved.

The Bill proposes to delete this rule.

It is submitted that in coming to a conclusion on this proposal, several points need to be considered.

(i) The rule was inserted as late as 1976 and its deletion today, within two decades, should prima facie be considered an an unusual course, for which very strong reasons would be required.

(ii) On the merits also, the rule appears to be a rational one. If certain evidence (not earlier available) becomes available before the judgment is pronounced, it stands to reason that the court should have power to permit it. It would be pointless to compel the party to wait until the judgment is pronounced and then expect the party to file an application for review under Order 47, Tule 1, on the ground that such evidence had become available. Order 18, rule 17A, far from delaying the trial or making the procedure complex, has really the effect of lessening the time spent in litigation and making the procedure less complex, because it avoids the laborious chronology of:

(1) judgment and decrees;

(2) application for review (because of fresh evidence);

(3) hearing and disposal of the review application;

(4) (if review is granted), fresh hearing of the main case, though limited to the new evidence; and

(5) fresh evidence and judgment in the trial so re-opened. [Cf. Kaura Ram v. Gobind Ram, AIR 1980 P&H 160.].

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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