Civil Revision No. 942 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 942 of 2008 Date of decision: 20.01.2009. Ram Murti ...Petiitioner Versus Rup Lal and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Karanjit Singh, Advocate, for the petitioner. Mr. Premjit Kalia, Advocate for the respondents. ***** S.D.ANAND, J. The plaintiff-petitioner has filed the present petition in order obtain the invalidation of the order dated 2.1.2008 (Annexure P-1), vide which the plea for additional evidence came to be allowed in favour of the defendants-respondents. The controversy at the trial revolves around the validity of the sale deed dated 5.4.1968. Sardari Lal is an attesting witness thereof. His examination-in-chief was recorded by the learned Trial Court and the matter was adjourned for cross-examination. However, he was given up on the adjourned date as having been won over by the plaintiff-petitioner. Through the impugned application for additional evidence, defendants- respondents applied for the leave of the Court to produce Sardari Lal aforementioned. The plea, raised in support thereof, was that Sardari Lal could not be produced earlier as his whereabouts were not traceable and Civil Revision No. 942 of 2008 -2- **** that his present whereabouts have been presently ascertained. Further plea of the defendants-respondents is that, in the absence of cross- examination, it would not be possible for the Court to consider the statement (examination-in-chief) made by that witness. Learned Trial Judge allowed their application by noticing that it would not otherwise be possible to take into consideration partly recorded statement of Sardari Lal. For holding that view, the learned Trial Judge also drew sustenance from the fact that defendants-respondents had themselves closed their evidence earlier and it was not a case where the evidence had been closed under the orders of the Court. The impugned order deserves to be outrightly invalidated. It is apparent from the record that Sardari Lal DW, whose examination-in-chief had been recorded earlier, was given up by defendants-respondents on the plea that he had been won over by the plaintiff-petitioner. At that point of time, there was no averment on behalf of the defendants-respondents that the whereabouts of Sardari Lal DW were not traceable. It is one thing to dub the witness as having been won over by the opposite party and quite another thing to aver that his whereabouts are not traceable. Once Sardari Lal had been given up on the above indicated premise, defendants- respondents cannot be heard to make a grievance that his recall (by means of additional evidence) should be allowed because the Court would not otherwise be in a position to consider his testimony on the basis of examination-in-chief. The witness having been given up, there is, no occasion for the trial Court to consider his examination-in-chief at all. Further the fact that the defendants-respondents had themselves closed the evidence is not a good ground for allowing the application for additional evidence. It is neither here nor there for the Civil Revision No. 942 of 2008 -3- **** learned Trial Court to have allowed the application on the premise that it is not a case where the evidence had been closed under the orders of the Court. In either eventuality, the impugned order could not have been granted because that witness had already been given up by the defendants-respondents themselves. The variation of the stances adopted by defendants-respondents is apparent enough in the circumstances of the case and plainly indefensible. In the light of the fore-going discussion, I have no hesitation in allowing the petition. The impugned order dated 2.1.2008 (Annexure P-1) shall stand quashed. The learned Trial Court shall proceed further in the matter in accordance with law. January 20, 2009 (S.D.Anand) Pka Judge