Civil Revision No.1973 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1973 of 2008 Date of decision : 15.1.2009 Gurcharan Lal .....Petitioner Versus Om Parkash and another ...Respondents **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.Ajay Jain, Advocate for the petitioner. Mr. B.R.Gupta, Advocate for respondent No.1. Mr.Madan Pal, Advocate for respondent no.2 S. D. ANAND, J. The plaintiff-petitioner had filed a suit for specific performance on the basis of agreement dated 10.4.2001 which had been executed in his favour by defendant-respondent no.1. The agreement was for the sale of indicated plot for a consideration of Rs.1,37,000/-. The entire amount was paid as earnest money. During the pendency of that suit, defendant- respondent no.1 executed a sale deed, through his General Power of Attorney, in favour of defendant-respondent no.2, thereby impelling the plaintiff-petitioner to file a civil suit to enforce the impugned agreement. The agreement was attested by Fateh Chand, (who is concededly none- else or other than the own father of the plaintiff-petitioner) and one Bhagwan Dass. The written statement therein was filed by defendant- respondent on 1.5.2006. Issues, on the pleading of the parties, were Civil Revision No.1973 of 2008 -2- **** framed on 15.5.2006. The case came to be adjourned repeatedly till 30.11.2006, when the evidence of the plaintiff-petitioner was ordered to be closed under the orders of the Court. That order is unchallenged till date. Thereafter, the evidence of defendants/respondents was concluded and the case came to be adjourned for recording of the rebuttal evidence and arguments. It was then only that the plaintiff-petitioner filed two applications. Vide application dated 30.1.2008, the plaintiff-petitioner applied for the leave of the Court to adduce additional evidence and to thereby prove on record a statement which his father Fateh Chand had made in Criminal case between the parties. Vide another application dated 29.1.2008, the plaintiff-petitioner also applied for the leave of the Court to examine hand writing expert (either in rebuttal evidence or, in the alternative, as additional evidence) to get the conceded signature of defendant-respondent no.1 compared with his signature on the impugned agreement. The plaintiff-petitioner thereby wanted to falsify the averment (in the course of the pleadings) by defendant-respondent no.1 that he had not executed that agreement and also not received the amount of Rs.1,37,000/-. Learned Trial Court non suited the plaintiff-petitioner on both the applications by observing that there was no justification for the allowance of the request for additional evidence when order dated 30.11.2006 directing the closure of the evidence of the plaintiff-petitioner had not been challenged till date and had thereby attained finality. In support of the finding, the learned Trial Court drew sustenance from the fact that the plaintiff-petitioner had not indicated the period of illness or date of death of his father Fateh Singh in the application which (mention thereof) only could have enabled him to prove that there was inability on Civil Revision No.1973 of 2008 -3- **** his part to have examined his father as a witness. Qua the other application, the learned Trial Court noticed that the pleading of the defendant-respondent no.1 denying the execution of the agreement were to the notice of the plaintiff-petitioner from the very beginning and he cannot be heard to put forward a request for additional evidence on account of death of his father (as one of the attesting witnesses) and the averred hostility of other attesting witness Bhagwan Dass. In that context, the learned Trial Court noticed that the application had been filed at a very belated stage when the case came to be fixed for final hearing. Mr. Ajay Jain, learned counsel appearing on behalf of the petitioner, argues that the reception of proposed additional evidence would enable the Court to dispose of the controversy effectively. It is also argued that the grant of leave in the relevant behalf would be in the interests of justice. The plea is resisted by the learned counsel appearing on behalf of the respondents who argues that the initial order dated 30.11.2006 having attained finality, the plaintiff-petitioner is dis-entitled from raising a plea for additional evidence. It is also argued that there is nothing to restrain the plaintiff-petitioner from examining his own father Fateh Singh who was through out alive, a fact which is evident from the medical certification Annexure P/1 dated 24.10.2006. Qua the other witness Bhagwan Dass, it is argued that there is nothing on record to indicate that he had colluded with the defendant-respondent. The averred hostility, it is argued, could have been proved by examining that witness at the trial which (course) had not been adopted by the plaintiff-petitioner in the matter before this Court. Though there can be no dispute with the proposition that a Civil Revision No.1973 of 2008 -4- **** Court ought to allow the additional evidence if it would enable it to dispose of the adjudication effectively. At the same time, there can be serious reservations about the favourable consideration of a such like additional evidence plea when the initial order directing closure of the evidence of the petitioning party had not been challenged and has attained finality. It would particularly so when the petitioner did not indicate the period of illness of his father in the course of the application which (application) also did not indicate the date of death of his father. If a person is disabled from attending the Court, he can be examined on commission with the help of interrogatories and cross-interrogatories. It was, thus, incumbent upon the plaintiff-petitioner to aver the exact period for which his father was ailing and also the date on which his father died. It is the furnishing of that precise information which could have buttressed the plea of the plaintiff-petitioner to explain disability on his part to examine his father Fateh Singh at the trial. It is obvious, in the circumstances of the case, that there was unexplained refrain on the part of the plaintiff- petitioner in the relevant behalf. Insofar as the relief applied for in the other application is concerned, it is to does not merit acceptance. As already indicated in an earlier part of this order, the written statement had been filed on 1.5.2006. Issues came to be framed thereafter. Further, it is thereafter only that the case came to be adjourned a number of times for the evidence to be adduced on behalf of the plaintiff-petitioner. It is on account of persistent default in the relevant behalf that the Court ordered the closure of evidence of the plaintiff-petitioner vide order dated 30.11.2006 which (order) had concededly not been challenged till date and had attained finality. Reliance, placed by the learned counsel for the plaintiff- Civil Revision No.1973 of 2008 -5- **** petitioner upon Kewal Singh Vs. Jagjit Singh (2008-1) 149 P.L.R. 173, is thoroughly misconceived. That was not a case in which the evidence of the petitioner had initially been closed under the orders of the Court and that order had attained finality. The facts of that case have no commonness with the present case. In the light of the fore-going discussion, it is held that both the applications had been validly negatived by the learned Trial Judge. The line of reasoning adopted by the learned Trial Judge is self-contained and appropriate in character and deserves affirmation and it is so ordered accordingly. The petition is held to be denuded of merit and is ordered to be dismissed. January 15, 2009 (S. D. ANAND) Pka JUDGE