CR No.6035 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6035 of 2007 (O&M) Date of Decision: 11.11.2008 Jaspal Singh ....Petitioner Vs. Prem Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.N.Raina, Advocate, for the petitioner. Mr.R.S.Mamli, Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) This revision petition is directed against the order passed by the learned Additional District Judge-II, Fatehabad allowing an application filed by the appellant-defendant for leading additional evidence. The petitioner/plaintiff filed a suit for possession by way of specific performance of agreement of sale dated 17.4.2003. It was claimed by the plaintiff that the defendant is the owner of suit land measuring 9 CR No.6035 of 2007 2 kanals 4 marlas bearing khasra No.274/14/2 (1-4) and 15 (8-0) situated at village Hijrawan Khurd Tehsil and District Fatehabad which was agreed to be sold to the plaintiff/petitioner by way of agreement to sell dated 17.4.2003 at the rate of Rs.1.5 lacs per acre. The plaintiff paid a sum of Rs.70,000/- as earnest money at the time of execution of agreement. The suit was contested wherein the execution of the agreement itself was denied as well as receipt of earnest money. It was claimed that as a security for payment of money advanced to the defendant the plaintiff used to obtain thumb impressions of the defendant on Bahis and blank papers. It was only when he stopped selling crops through the firm of the plaintiff then a request was made to settle the accounts, the plaintiff petitioner refused to settle the same and a suit for rendition of accounts was filed. A specific plea was taken that he never agreed to sell the land to the plaintiff. The suit was decreed. It may be mentioned here that even the suit for rendition of accounts where the income tax return was summoned was also ordered to be dismissed. The defendant/respondent preferred an appeal against the judgment and decree wherein an application was made for leading additional evidence to summon the income tax return in order to prove the payment of Rs.70,000/-. The said application has been allowed by learned Additional District Judge by passing the following operative order:- “ After due consideration of the rival contentions of the CR No.6035 of 2007 3 parties, I am of the view that no prejudice would be caused if the record of Income Tax Department is summoned, rather the summoning of record of Income Tax Department will clear the picture as to whether the plaintiff has actually paid Rs.70,000/- to the defendant appellant as alleged in the plaint and this fact will further help this court in reaching right conclusion. No doubt the application has been filed at a very belated stage when the case has come up in the appeal, but for this the plaintiff/respond4nt can be compensated by imposing costs upon the defendant. Accordingly. Present application for additional evidence is allowed subject to payment of Rs.2000/- as costs. Let entire relevant record mentioned in the application be summoned for 23.11.2-007.” Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the evidence sought to be produced by way of additional evidence was not such which was not within the knowledge of the defendant-respondent or which could not be found out with due diligence. It is also the case of the petitioner that the evidence is not such which would be necessary to enable the court to pronounce the judgment. Even if for the sake of argument said amount is not depicted in the income tax return it cannot lead to a conclusion that no such payment was made in view of the evidence led before the learned trial court which stands accepted. The contention of the learned counsel for the petitioner, therefore, is that in the present case the ingredients of Order 41 Rule 27 of CR No.6035 of 2007 4 the Code of Civil Procedure do not stand satisfied. It is further the case of the petitioner that the order passed does not give any reason as to how the evidence would be necessary to reverse the findings recorded by the learned trial court. Mr. R.S.Mamli, learned counsel appearing on behalf of the respondent, however, vehemently contends that against the dismissal of suit for rendition of accounts appeal is pending. It is case of the defendant/respondent that in case said evidence is brought on record it would enable the court to form an opinion as to whether the earnest money was paid or not. In support of the order passed by the learned lower appellate court the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of Wadi Vs. Amilal and others 2002 P.L.J.228, wherein Hon'ble Supreme Court has been pleased to lay down that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment it may allow such document to be produced or witness to be examined. Requirement of appellate court that interest of justice is paramount. For invoking of power under Order 41 Rule 27of the Code the vigilance or negligence of the parties is not relevant factor. This proposition of law is well settled, however does not apply to the facts of the present case. The appellate court has to form an opinion that the additional evidence is required for pronouncing the judgment. The evidence sought to CR No.6035 of 2007 5 be produced by the defendant/respondent is not such which is required for pronouncing the judgment. It was for the plaintiff/respondent to prove the payment of earnest money and the appellate court is to see whether there is evidence brought on record. The income tax return is not such a document which could be used to rebut the evidence regarding payment of earnest money if the same has otherwise been validly proved on record. This revision deserves to be allowed as the ingredients of Order 41 Rule 27 of the Code of Civil Procedure are not met enabling the court to allow additional evidence which is sought to be produced. The impugned order is set aside. The application moved by the defendant/respondent for leading additional evidence is ordered to be dismissed. Revision allowed. 11.11.2008 (Vinod K.Sharma) rp Judge