MANMOHAN SARIN, J.

(1) AGGRIEVED by the order dated 28-4-1995, passed by Sh. S. K. Aggarwal, Civil Judge, dismissing the petitioners application under Order XVIII Rule 17 A read with Section 151 CPC, for being permitted to produce on record and prove the letter dated 12-1-1993, allegedly sent by the petitioners and served on the respondent, the petitioners have filed this civil revison petition.

(2) THE facts in brief giving rise to the present petition may be noticed:- On 12-8-1994, respondent instituted a suit for recovery of Rs. 48,995. 00 against the petitioners, comprising principal sum of deposit of Rs. 35,000. 00 together with interest accrued @ 21% P. A. A decree of permanent injunction was als sought against the petitioners from alienating for parting with possession industrial shed on the plot allotted too petitioner No. 2. In the written statement filed, the factum of deposit and rate of interest is admitted. It is claimed that pursuant to the decision to shift works from Delhi to Alwar, petitioner had proposed/offered to respondent and other depositors to either give notice for return of the deposit or extend the deposit for a period of at least five years w. e. f. 1-4-1995, at reduced rate of interest of 15%. The respondent had accepted the latter after number of meetings discussions and deliberations. Accordingly, interest installment became due only on 31-3-1994 and there was no default. It was further claimed that the suit had been filed at the behest of one S. P. Sharma, who was petitioners Chartered Accountant and had organized the deposits. He had now turned Inimical to petitioners. On 12-12-1994, the Court framed the following issues:- " (i) Whether the plaintiff novated the contract regarding deposit of money with defendants as alleged in the written statement OPD (ii)Relief. "

(3) THE petitioners during the evidence of the defendants moved an application under Order XVIII Rule 17-A CPC for being permitted to produce a letter dated 12-1-1993, claimed to be written by the petitioner to the respondent and served upon them. It is the petitioners case that this letter was not available to the petitioner, when the written statement was filed. It was only on the scrutiny of the books of accounts that had been made available by the said Sh. S. P. Sharma pursuant to the order passed in suit No. 287/94, that the said letter which was lying mixed up in the books of accounts/record, was discovered in end March, 1995. It is stated that the petitioners gained knowledge about the existence and contents of the said letter for the first time in the last week of March, 1995. It is urged that the said letter is an important and material piece of evidence and has direct bearing on the issue framed by the Court. Despite due diligence and attempts, the said piece of evidence could not be produced by the petitioner as it was lying in the exclusive custody of the said Sh. S. P. Sharma. The letter, it is stated to the best knowledge of the petitioner has been typed in the office of the said Sh. S. P. Sharma and had remained with him. No reply was filed to this application by respondent. The alleged letter dated 12. 1. 1993 is sent on behalf of M/s. Avinash Chander Anil Kumar Jain and signed by Shri Avinash Chander Jain as director. It gives the depositors option either to withdraw the deposit by giving a notice or retention of the deposit for five years at reduced rates. It is further stated that in case no intimation is received it would be presumed that the second option had been accepted.

(4) IT may be noticed that prior to this application there had been number of applications under Order 8 Rule 1, under Order 14 Rule 1 and under Order 11 Rule 12 of the Code of Civil Procedure, which the respondent contended were to delay the progress of the suit. The learned Civil Judge dismissed the present application vide the impugned order. The learned Civil Judge noted that there was no mention of letter in the written statement. Further that it was hard to believe that the petitioner "no. 2, who had himself taken the decision on behalf of petitioner No. 1 to write to the depositors forgot to mention about the same. Further that there was no mention of this letter in any of the earlier applications. In the written statement a plea of oral novation had been taken, which was also noted in the order dated 24-1-1995, which had not been challenged. He held that though the alleged letter and record were available to petitioner on 12-10-1994, the petitioner had obtained yet another opportunity to file documents, which was not done. The learned Civil Judge, concluded that the letter in question appeared to be a manufactured document.

(5) LEARNED counsel for the petitioner, Mr, Jain, while assailing the impugned order submitted that the plea in substance in the written statement was that the petitioner had intimated respondent of their proposal to shift the plant and had offered to return the deposit or in the alternative to retain the same for a further period of five years with reduced rate of interest from 21 % to 15% P. A. The written statement did not raise the plea of oral novation as held by the learned Civil Judge. It is stated that the document was produced with due diligence as soon as it was discovered. The trial court committed material irregularity in denying the petitioner, the opportunity to produce the document on record and prove the same. This would cause immense prejudice to the petitioner. The Court has pronounced a finding regarding the authenticity of the documents without the petitioner having an opportunity to produce and prove it. Counsel for the petitioner also relied on Kaura Ram Vs. Govind Ram AIR 1980 Punjab and Haryana 160 in support of his submission that additional evidence should be permitted on terms which are just.

(6) LEARNED counsel for the respondent submitted that the entire effort of the petitioner had been to delay the prosecution of the suits by making one application after the other. The order of the learned Civil Judge did not suffer from any material irregularity or lack of jurisdiction. The learned Civil Judge, has adopted the correct approach in nipping in bud a false case.

(7) HAVING heard the learned counsels for the parties and perused the pleadings and material on record, I am of the view that the petitioner has failed to make out a case to satisfy the Court that after the exercise of due diligence, the evidence was not within his knowledge and possession and could not be produced on record at the appropriate time. The case cited by the petitioner Kaura Ram Vs. Govind Ram (Supra) does not advance the petitioners case as the same is clearly distinguishable. The trial court in the cited case had disallowed production of a judicial order by way of additional evidence, which was not in existence at the time when evidence was closed and came to be passed later. The order of the trial court was therefore reversed.

(8) CONSIDERING the petitioners own case regarding the proposal that was mooted and sent to the depositors offering them to return their deposits or in the alternative retention of the same for a period of five years at reduced rate, it is higly unlikely that the petitioner would have lost sight of such an important document conveying the written proposal to depositors and seeking confirmation. Copy of the said letter produced does not show that it was sent either by registered post or even under certificate of posting. Further it is not even on behalf of the petitioner company. The letter is said to have been typed at the office of Shr S. P. Sharma in which case there would have been no ocassion to mark a copy of it to Shri S. P. Sharma for information. Besides the averments in the written statement refer to meltings, discussions and deliberations. There is no mention of any written proposal or acceptance thereof in writing by which novation of contract in writing could be inferred. Accordingly, the finding of trial court that the plea in the written statement is of oral novation, cannot be said to be vitiated by any material irregularity.

(9) THE plea of the petitioner is that the letter could not be produced earlier as the books of accounts and record were received back from Sh. S. P. Sharma on 10-10-1994. The written statement was filed in the instant case in 21-11-1994 i. e. nearly a month after the books of account and records had been received from Mr. S. P. Sharma. Yet neither reference was made to the written proposal vide the letter nor was it produced. The petitioners plea that it was discovered only in March, 1995 does not inspire confidence. Learned counsel for the respondent had tendered during arguments the list of records returned by Mr. S. P. Sharma and acknowledged by petitioner. The receipt shows only accounting records were returned. It does not show that any correspondence file was returned. This belies the petitioners stand. Even otherwise, it cannot be said that the document was not in possession of the petitioner at the relevant time or could not be produced with due diligence.

(10) ALTHOUGH, the case is at the intial stage and a liberal approach of not denying an opportunity of producing additional evidence is adopted, the attendant circumstances of this case as discussed above are such, which show that the pleas being taken are false to delay and stall the prosecution of the suit.

(11) THE impugned order does not suffer from any material irregularity or excess of jurisdiction to warrant interference in the exercise of revisional jurisdiction. The petition is dismissed. The learned Civil Judge would proceed with the trial of the suit and conclude it as expeditiously as possible.