C.R. No.5176 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5176 of 2009 Date of Decision: 30.08.2010. Smt. Sushma .……Petitioner Versus Krishan Lal and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Harkesh Manuja, Advocate for the petitioner. Mr. Arun Luthera, Advocate for respondent No.1. None for the respondent Nos.2 and 3. L. N. MITTAL, J (ORAL) Defendant No.3-Smt. Sushma has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to assail order dated 26.08.2009 Annexure P-2 passed by learned Additional Civil Judge (Senior Division), Ganaur thereby dismissing the petitioner's application for additional evidence. Respondent No.1-Krishan Lal has filed suit against proforma respondent Nos.2 and 3 and the petitioner for specific performance of agreement to sell dated 01.03.2005 alleging that the said agreement was executed by defendant Nos.1 and 2/proforma respondent Nos.2 and 3 in favour of plaintiff-respondent No.1. The claim of defendant No.3-petitioner is that defendant Nos.1 and 2 vide agreement dated 16.02.2005 Annexure P-1 had already agreed to sell the suit property to M/s Radha Raman Builders and Developers Private Ltd. and the sale deed could be executed either in favour of C.R. No.5176 of 2009 -2- the said Company or its assignee and consequently, sale deed dated 30.03.2005 has already been executed by defendant Nos.1 and 2 in favour of defendant No.3-petitioner much before the filing of the instant suit by plaintiff-respondent No.1. Defendant No.3 moved application for additional evidence to examine Jagjeet Singh Chauhan and Surender Khatri as witnesses. The said application has been dismissed by the trial Court by impugned order Annexure P-2. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner contended that Jagjeet Singh Chauhan and Surender Khatri are to be examined as witnesses by defendant No.3-petitioner to prove agreement dated 16.02.2005 Annexure P-1 which was pleaded in the written statement and its copy was also produced along with the written statement. It was contended that counsel for defendant No.3 closed evidence of defendant No.3 on 06.08.2009 by making statement wherein agreement Annexure P-1 was also tendered in evidence. However, objection was raised to the said agreement and, therefore, application for additional evidence was moved on the same day i.e on 06.08.2009. It was contended that examination of the aforesaid two witnesses is essential for proving agreement Annexure P-1. On the other hand, learned counsel for respondent No.1- plaintiff contended that it was not mentioned in the application as to for what purpose, the aforesaid witnesses are to be examined nor it is explained as to why the said witnesses were not examined at appropriate stage. It was also contended that proposed additional C.R. No.5176 of 2009 -3- evidence was already in the knowledge of the petitioner and, therefore, the same cannot be allowed to be produced by additional evidence. Reliance in support of this contention has been placed on judgments of this Court in the case of Baljinder Kaur wife of Gurmit Singh versus Rajesh Kumar son of Gurdev Singh, 2009(5) RCR (Civil) 435 and in the case of M/s Ajay Trading Company versus M/s Karan Beej Bhandar, 2010(2) Law Herald (P & H) 1506. I have carefully considered the rival contentions. It is the case of defendant No.3-petitioner in the written statement itself that defendant Nos.1 and 2 had entered into agreement Annexure P-1 with M/s Radha Raman Builders and Developers Private Ltd. and even copy of the said agreement was produced in the trial Court along with the written statement. Now witnesses of the said agreement are sought to be examined by additional evidence. Consequently, new case is not sought to be introduced by the petitioner by examining these two witnesses. It is correct that the petitioner should have disclosed the purpose of examining these witnesses in application for additional evidence, but merely for this omission on the part of the counsel for the petitioner in the trial Court, the petitioner cannot be penalized with rejection of the application, although petitioner could be burdened with costs. It is expressly made clear in the revision petition that Jagjeet Singh Chauhan and Surender Khatri are witnesses of the agreement Annexure P-1 and are required to be examined for proving the said agreement. In my considered opinion, ends of justice would be met if the proposed additional evidence is allowed on payment of heavy costs. C.R. No.5176 of 2009 -4- Judgments relied on by counsel for respondent No.1 are not applicable to the facts of the instant case. In the case of Baljinder Kaur (supra), application for additional evidence was moved at appellate stage whereas in the instant case, the application for additional evidence has been moved in the trial Court itself. In the case of M/s Ajay Trading Company (supra), application for additional evidence was moved in the trial Court. However, the said application was moved by the plaintiff at the stage of rebuttal evidence and argument i.e at very belated stage. In the instant case, however, evidence of defendant No.3 was closed by her counsel on 06.08.2009 after tendering the agreement Annexure P-1 in evidence, but since the said agreement was objected to, immediately on the same day, without any delay, application for additional evidence was moved by defendant No.3 in the trial Court. Consequently, both the above judgments are completely distinguishable on facts. For the reasons aforesaid, the instant revision petition is allowed and impugned order Annexure P-2 passed by the trial Court is set aside and application for additional evidence moved by defendant No.3-petitioner in the trial Court is allowed and the petitioner is permitted to examine Jagjeet Singh Chauhan and Surender Khatri as witnesses by additional evidence, subject to payment of Rs.10000/- as costs precedent. ( L. N. MITTAL ) JUDGE 30.08.2010 A. Kaundal