C.R. No. 5212 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … C.R. No. 5212 of 2008 Date of decision: March 27,2009 Badri Lal Taneja son of Pokhar Dass ..Petitioner Versus Tek Chand and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Shiv Kumar , Advocate for the petitioner. Mr. Lokesh Sinhal, Advocate for the respondents ... Rakesh Kumar Garg,J. The plaintiff has filed the present revision petition challenging the order dated 23.8.2008 passed by the Additional Civil Judge (Senior Division), Faridabad, whereby his application for production of additional evidence has been dismissed. As per the averments made in this revision petition, the petitioner filed a suit for permanent injunction against the respondents that he is owner of the house bearing H. No. EP 116 Ward No.4, Punjabi Mohalla, Opposite Hanuman Mandir, Ballabgarh District Faridabad and is in possession of the whole of the house except the portion shown in red colour (which was previously in occupation of defendant No.1 as a licensee under the father of the petitioner- plaintiff and later on under the petitioner) and prayed for the decree by way of permanent injunction restraining the defendant Nos.1 and 2 from raising construction in the said portion of the House No. EP 116, Ward No.4, Punjabi Mohalla, Opposite Hanuman Mandir, Ballabgarh marked as A B X Y shown in red colour and also prayed that decree for declaration that the sale deed executed by the respondent No.1 in favour of the respondent No.2 is not binding C.R. No. 5212 of 2008 2 upon the petitioner and also sought the decree by way of possession of the said portion. The respondents contested the said suit. The petitioner-plaintiff as well as the respondents led their respective evidence and thereafter the case was fixed for rebuttal and arguments. At the initial stage, the petitioner had filed a list of witnesses etc. for production of evidence in the trial Court as under:- i)Shri C.R. Bhalla, Advocate, District Courts, Sector 12, Faridabad. (To state about specifying of the Rehabilitation Records of Tehsildar Sales-cum-Managing Officer, Faridabad to the effect that no evacuee property was transferred in the name of Shri Pannu Ram ( i.e., Father of defendant No.1)and the family of Shri Pannu Ram was remained separately from Shri Pokhar Dass (i.e., Father of the plaintiff) and the defendant No.1 was living separately at Gaziabad and Ballabhgarh and the details related to that effect). ii)The Copyist of the office of Deputy Commissioner, Faridabad: (To prove the preparation of copies obtained from rehabilitation department, Faridabad). iii)The Clerk concerned of the office of Tensildar Sales-cum- Managing Officer, Faridabad (Sector 12). (To bring the Rehabilitation Department’s/Evacuee Records of Evacuee Property situated at Ballabhgarh Town). The aforesaid evidence was not brought on record by him. It is further the case of the petitioner that he filed an application under Order 18 Rule 3 read with Section 151 CPC for summoning the Naib Tehsildar (Sales), Faridabad in order to prove certain documents which are being sought to be produced vide impugned order . The said application was dismissed by the trial Court vide order dated 27.5.2008. The aforesaid order was challenged by the petitioner vide Civil Revision No.3441 of 2008 in his Court C.R. No. 5212 of 2008 3 which was disposed of as under:- “The application filed by the petitioner under Order 18 Rule 3 CPC stands dismissed. Basically the request of the petitioner for producing on record the documents by summoning the original record in regard to disputed property is declined on the ground that he being a plaintiff was required to lead this evidence in the affirmative and cannot be permitted to lead this evidence at the stage of rebuttal. When confronted with this situation, the counsel for the petitioner prays that the petitioner may be given liberty to move an application for leading this piece of evidence by way of additional evidence. Let the petitioner move an application in this regard before the trial Court. If he does so, the trial court would consider and decide the said application in accordance with law. The impugned order, whereby he has been declined to lead this evidence in rebuttal, would not stand in his way while considering his prayer for leading additional evidence. The present revision is accordingly disposed of . Order dasti on payment.” Thereafter the petitioner filed an application under Order 18 Rule 17-A C.P.C. for leading additional evidence for bringing on record the aforesaid documents and production of evidence. However, the trial Court rejected the aforesaid application for leading additional evidence vide impugned order. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the evidence sought to be proved by the petitioner by way of additional evidence was not in his knowledge, possession and control, hence the same could not be produced earlier despite due diligence. Therefore, the aforesaid witnesses and documents which are most essential for proper adjudication of the controversy be allowed to be produced on record. In support of his case, learned counsel for the petitioner has relied upon a judgment of this Court in the case of Pawan Kumar Versus Raj Kumar C.R. No. 5212 of 2008 4 and others 2007(1) RCR (Civil) 385 to contend that if the trial Court has shut a material piece of evidence which goes to the root of a matter and is required for just and proper adjudication of the case, in exercise of its power under Article 227 of the Constitution of India, the High Court has inherent power to allow such additional evidence and further that once it is proved on record that the evidence was necessary and otherwise also the evidence sought to be produced was per se admissible in evidence, delay could not stand in the way of allowing the application, learned counsel has prayed that the impugned order be set aside and the petitioner be allowed to lead additional evidence as prayed. On the other hand learned counsel appearing on behalf of the respondent has vehemently argued that the petitioner is not entitled to lead additional evidence as, evidence of the plaintiff was closed by order of the court on 30.1.2004 and prior to that he was given sufficient opportunities to lead evidence, therefore, now when the case is at argument stage, the petitioner cannot be allowed to lead additional evidence. Learned counsel has further argued that the evidence sought to be produced on record by way of additional evidence was to the knowledge of the plaintiff from the very beginning and, in fact, the names of the witnesses now sought to be produced also find mention in the list of witnesses originally produced by the petitioner in the court while leading his evidence and therefore, it was for him to prove his case at that stage and now he cannot be allowed to fill up the lacuna by way of additional evidence. In support of his argument, learned counsel for the respondent has placed reliance upon a judgment of this Court in Sukhdev Singh Versus Gurmukh Singh (1998-3) PLR 46. I have heard learned counsel for the parties. It is not in dispute that evidence of the petitioner was closed by order of the court on 30.1.2004 and the aforesaid order was never challenged by him, Thereafter, the defendant-respondent led his evidence. Earlier also, the petitioner under the garb of production of evidence in rebuttal sought to produce the same evidence which he wants to produce now by way of additional C.R. No. 5212 of 2008 5 evidence. However, the petitioner failed in his attempt as the trial Court rejected his application under Order 18 Rule 3 CPC and Civil Revision No. 3441 of 2008 filed by him in this Court was disposed of giving an opportunity to the petitioner to move an application for leading the evidence by way of additional evidence. It is relevant to point out here that this court while disposing of the aforesaid Civil Revision had not allowed the request of the petitioner but had clearly mentioned that his application for leading additional evidence be decided in accordance with law and thereafter, the present application for leading additional evidence was filed which has been rejected vide impugned order. Thus, from the aforesaid facts, it is crystal clear that the evidence sought to be produced by the petitioner was to his knowledge from the very beginning and he was given many opportunities to lead his evidence and he failed to avail these opportunities and thereafter his evidence was closed by order dated 30.1.2004. The petitioner has never challenged the aforesaid order. Once that is so, it cannot be said that petitioner was diligent in leading his evidence but could not bring on record the evidence which is now sought to be produced . Rather from the facts narrated above, it seems that petitioner has not come to the court with his hands clean as he had tried to circumvent the order dated 30.1.2004, firstly, by making an attempt to lead the aforesaid evidence by way of rebuttal evidence and thereafter, vide application for additional evidence which has been rejected vide impugned order. No doubt, in exercise of powers under Article 227, the Court can correct the irregularity and illegality in the trial Court order and allow additional evidence in case it is necessary for just and proper adjudication of the case. However, in the facts and circumstances of the case, this Court is not inclined to exercise its jurisdiction under Article 227 of the Constitution of India in the present case. Dismissed. March 27, 2009 (RAKESH KUMAR GARG) nk JUDGE