Civil Revision No. 5770 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5770 of 2011(O&M) Date of Decision: September 26th,2011 Deepak Taneja .... Petitioner Versus Sh. Anil Sethi and others .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Sanjay Vij, Advocate, for the petitioner. VIJENDER SINGH MALIK, J. Deepak Taneja, one of the defendants, has brought this revision under the provisions of Article 227 of the Constitution of India for setting aside the order dated 10.8.2001 (Annexure P1) passed by Civil Judge (Junior Division), Gurgaon. The petitioner-defendants applied for permission to lead additional evidence in a suit brought by Anil Sethi and Sushil Sethi for possession by way of specific performance on the basis of agreement of sale dated 6.10.2005. Before filing this suit, the plaintiffs had filed a suit for permanent injunction on the basis of aforesaid agreement of sale. The said suit was later on withdrawn with liberty to file a fresh suit on the same cause of action. It is claimed in the application by the defendants that in Civil Revision No. 5770 of 2011 2 .. the said suit, the plaintiffs had claimed possession of the suit property to have been delivered to them at the time of execution of agreement of sale. The plaintiffs are seeking a decree for possession by way of specific performance by way of the second suit. The additional evidence is sought to be led to prove certified copies of plaint and final order passed in the earlier suit, filed for permanent injunction with a view to say that the present suit has not been filed on the same cause of action. The additional evidence sought to be brought by the defendants is claimed to be just and necessary for proper adjudication of the second suit. It is also claimed that the documents sought to be produced by the defendants could not be created by the plaintiffs. Therefore, prayer was made for permission to lead additional evidence. The application was opposed by the plaintiffs claiming that the defendants knew about these documents when they were leading their evidence. Hearing learned counsel for the parties, learned trial court has dismissed the application only for the reason that the party seeking to lead additional evidence had knowledge of the documents at the time when it was leading its evidence in the affirmative. Reliance in this regard has been placed on the decision of Hon`ble the Supreme of India in K.K.Velusamy v. N. Palanisamy JT 2011 (4) SC 38. Aggrieved by the aforesaid order, one of the defendants has brought this revision petition. Civil Revision No. 5770 of 2011 3 .. I have heard Shri Sanjay Vij, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has submitted that in the earlier suit, the plaintiffs had claimed the defendants to have refused to execute the sale deed under the terms of agreement of sale in question. According to him, on this refusal, the suit to be filed by the plaintiffs should have been for specific performance of the contract and not for permanent injunction. According to him, the earlier suit was barred by the provisions of Order 2 Rule 2 CPC and this suit has not been filed on the same cause of action. Learned counsel for the petitioner has drawn my attention to the decision of Hon`ble Apex Court in K.K.Velusamy's case (supra), where the ratio of the decision is claimed to be otherwise. According to him, the prayer in the reported case had been allowed, though the general principle, as noticed by learned trial court, had been laid down. He has also cited before me two decisions of this Court in Jagdish Kumar V. Smt. Manjit Kaur (2010-3) PLR 108 and Phuman Singh V. Hazara Singh and others (2009-3) PLR 232. The principle adopted by learned trial court is not applicable in all eventualities. It is definitely not applicable to a case where the additional evidence sought to be led would not take the other party by surprise. The plaintiff himself filed the second suit pleading that he had withdrawn the previous suit filed for permanent injunction and one of the documents sought to be Civil Revision No. 5770 of 2011 4 .. produced as additional evidence is a copy of the plaint of that suit. The second document is a copy of order of the court vide which the first suit was permitted to be withdrawn. Therefore, it can never be said that these documents were of the possession of defendants and that they had any opportunity to manipulate them. The genuineness of these documents cannot be questioned. However, for the negligence of the defendants in not producing these documents at the time they were leading their evidence, the other party can be compensated with costs. In these circumstances, the order passed by learned trial court dismissing the application cannot be upheld. The revision petition is, consequently, accepted and the prayer for leading additional evidence of copy of the plaint of earlier suit for permanent injunction and copy of order passed therein, vide which that previous suit was permitted to be withdrawn with liberty to file fresh one on the same cause of action, is allowed subject to payment of Rs.5,000/- as costs. (VIJENDER SINGH MALIK) JUDGE September 26th , 2011 som