Civil Revision No. 7808 of 2009 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 7808 of 2009 (O&M) Date of decision : 22.2.2010 Dharam Singh ..... Petitioner vs Vijay Kumar ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. K. S. Chahal, Advocate, for the petitioner. Mr. S. S. Salar, Advocate, for the respondent. Rajesh Bindal J. Challenge in the present petition filed under Article 227 of the Constitution of India is to the order dated 18.3.2009 (Annexure P-2) passed by the learned court below, whereby evidence of the petitioner-plaintiff was closed by order of the court and the order dated 5.11.2009 (Annexure P-6) vide which his application for leading additional evidence was dismissed. The proceedings in the present case arise out of a suit filed by the petitioner/plaintiff for permanent injunction restraining the respondent/ defendant from interfering into his peaceful possession over the suit property. The suit was filed by the plaintiff on 18.7.2007 and after completion of the pleadings, the issues were framed on 22.5.2008. The evidence of the petitioner/plaintiff started on 7.6.2008. Learned counsel for the petitioner submitted that the possession of the suit land was given by Avtar Singh Kanungo by way of warrant of possession and entry in this regard was made in the revenue record. The plaintiff has produced on record the certified copy of possession proceedings and to prove the same, examination of the said kanungo is necessary. In the application filed for examining the said kanungo, the petitioner was asked to produce him on 30.1.2009. On 30.1.2009 the case was again adjourned to 27.2.2009. On the said date also, the petitioner could not produce the said witness and the case was adjourned to 18.3.2009 on which date the court closed the evidence of the petitioner by order. Civil Revision No. 7808 of 2009 (2) Learned counsel for the petitioner submitted that the official witness to whom the petitioner wanted to produce could not be served as a criminal case was registered against Avtar Singh kanungo and he was on long leave from 23.6.2008 to 20.1.2009. The order granting leave to said witness is annexed as Annexure P-3. The said kanungo had even filed application for grant of anticipatory bail in the said case. It is not that the petitioner is delaying the matter. The petitioner tried his best to conclude his evidence. As at the initial stage it was beyond the control of the petitioner to produce Avtar Singh Kanungo as a witness, after conclusion of evidence of the respondent/defendant, he filed application on 24.9.2009 for leading additional evidence which was dismissed by the court below on 5.11.2009. He submitted that due to non-appearance of the said kanungo, who had delivered the possession to the petitioner, he should not be made to suffer on that account as he had taken effective steps to summon the witness. He further submitted that in case one opportunity is granted, the petitioner will complete his entire evidence on the date fixed. On the other hand, learned counsel for the respondent submitted that aim of the petitioner is only to delay the proceedings. The order of the learned court below closing the evidence of the petitioner by order is perfectly right as numerous opportunities were availed of by the petitioner to adduce evidence. In so far as application for additional evidence is concerned, it is submitted that the alleged evidence was very much within the knowledge of the petitioner and only that evidence can be permitted to be produced as additional evidence which was not in his knowledge or the same has been cropped up during the pendency of the suit. Heard learned counsel for the parties. From the facts as have been pleaded by the learned counsel for the petitioner, in my opinion, the case for permitting the petitioner to lead additional evidence in the form of producing Avtar Singh Kanungo is made out. It is not in dispute that the petitioner had made application for producing him as a witness to prove the proceedings of delivery of possession, which are already on record. The claim of the petitioner is that he was delivered the possession of the suit property by Avtar Singh Kanungo. The said kanungo could not be produced in evidence on account of registration of a criminal case against him at that time and on account of Civil Revision No. 7808 of 2009 (3) that he remained on leave from 23.6.2008 to 20.1.2009. It is for this reason that the evidence of the petitioner could not be concluded. Considering the aforesaid facts, the petitioner cannot be made to suffer as it was on account of circumstances beyond his control that he could not produce the said witness though the same was within his knowledge. Accordingly, while setting aside the impugned order dated 15.11.2009 dismissing the application for additional evidence, the learned court below is directed to grant one opportunity to the petitioner for completing his evidence on the date to be fixed by it. The same shall be subject to payment of Rs. 2,500/- as costs to the respondent. The petitioner shall be at liberty to get summons issued for the official witness. The revision petition is disposed of in the manner indicated above. 22.2.2010 ( Rajesh Bindal) vs. Judge