Kulwant Sahay, J.@mdashThis is an application by the defendant first party in a suit which was instituted so far back as the year 1924, The suit was for setting aside a patni sale, the plaintiffs alleging themselves to be the darpatnidars whose interests would be affected by the sale.
2. The defendant first party is the alleged purchaser of the patni sale and one of the questions raised in the suit is whether defendant 1 is the actual purchaser, or is a mere benamidar for the defendant third party. The suit was instituted so has back as 12th May 1924.
3. The issues were settled in November 1924; the actual trial commenced in January 1925, but the hearing was stayed on account of certain settlement proceedings, the suit having been transferred to the Settlement Officer for disposal, and again re-transferred to the civil Court The result was that, although the trial commenced in January 1925, arguments were not heard until some time in April 1929. The defendant''s arguments were finished on 21st May 1929 and the plaintiffs'' arguments began on 6th June 1929. On 30th June 1929, that is to say about twenty-four days after the commencement of the plaintiff''s argument, an application was made by the plaintiffs four reception of three documents in evidence.
4. Objection was raised on behalf of the defendants to the reception of this new evidence, and the learned Subordinate Judge, by his order dated 6th August 1929, has disallowed the objection of the defendants and directed that the documents be received in evidence-under Order 13, Rule 2, Civil P.C. It in against this order that the petitioner has come in revision to this Court and the question is whether this Court ought to interfere with the order of the Subordinate Judge. There is no doubt that there has been a great delay in the production of this evidence; and ordinarily such evidence ought not to be received at such a late stage of the case. But under Order 13, Rule 2 discretion is given to the trial'' Court to receive-evidence at any stage of the proceeding if good cause is shown to the satisfaction of line Court for the nom-production of the evidence at an earlier stage; This rule applies not only, to certified copies of public documents but also to private documents about the genuineness of which there can be no doubt.
5. The learned Subordinate Judge has considered the question, and in the exercise of his discretion has ordered that these documents be received in evidence It cannot be said that the Subordinate Judge has either acted illegally, in the exercise of his jurisdiction, or has exercised a jurisdiction which was not vested in him. It is impossible for me sitting in revision to say whether documents sought to be adduced in evidence are relevant or what bearing they have upon the issues raised in the suit. This was a matter entirely, for the Subordinate Judge and he has considered the question and has ordered the documents to be received. No doubt the documents have been produced at a very late stage; but late production of the documents by itself is not sufficient to reject the documents. Review can be granted on the ground of discovery of new evidence. Evidence which was not available to the parties during the trial of the suit but of which they came to knew after the filing of an appeal, can be admitted even at the appellate stage. If the discovery of new evidence can be a ground for making an application for review of judgment, and if such evidence can be accepted even at the appellate stage, there is no reason why, if the document is discovered before the final disposal of the suit, such documents should not be received in evidence. I am therefore unable to interfere with the order of the Subordinate Judge.
6. Having regard to the circumstances of the case, the Subordinate Judge ought to have considered the question of costs. It was after the defendants had finished their evidence and their arguments, and it was also at the close of the hearing of the arguments for the plaintiffs that these documents were produced in the Court below. It may now be necessary that the defendants should be given an opportunity for giving rebutting evidence and fresh arguments might be necessary. This would entail extra expenses and costs to both the parties; but this extra cost is entirely due to the action of the, plaintiffs who ought to have been diligent enough to discover all their evidence at an earlier; stage of the case.
7. The Subordinate Judge will therefore give such directions as regards costs, to be incurred by the parties from the stage at which the application to receive new evidence was filed. Ordinarily the plaintiffs ought to bear all the costs in these proceedings, but the question lies entirely in the discretion of the Subordinate Judge and he will give such directions as regards payment of costs as he considers proper. This application is dismissed but without costs.
