C. R. No. 6127 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 6127 of 2010 (O&M) Date of Decision : September 27, 2010 Nachattar Singh and another .... Petitioners Vs. Surjit Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Harsh Aggarwal, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : C. M. No. 24227-C-II of 2010 : Allowed as prayed for. Main Appeal : Defendants have filed instant revision petition under Article 227 of the Constitution of India impugning order dated 21.07.2010 (Annexure P-6) passed by learned Civil Judge (Junior Division), Jagraon thereby dismissing application moved by defendants-petitioners for additional evidence to prove agreement dated 19.10.1983 by secondary evidence. C. R. No. 6127 of 2010 (O&M) 2 Respondents have filed suit for possession of the suit property alleging that the defendants-petitioners have made unlawful encroachment on the suit property owned by respondents-plaintiffs. Defendants, in their written statement (Annexure P-2), alleged that Lal Singh and Balwinder Singh were owners of the suit property. Balwinder Singh inherited it from his forefathers, whereas Lal Singh purchased it from Baldev Singh. In application Annexure P-3 moved by petitioners for additional evidence to prove the agreement by secondary evidence, it was pleaded that the agreement dated 19.10.1983 was not in the knowledge of the defendants and they learnt of it while they were separating valuable documents from invaluable documents. The said agreement is very material for deciding issues nos.5 and 6. However, the original agreement is not in possession of defendants nor traceable with Lal Singh and Balwinder Singh and accordingly, the same is required to be proved by secondary evidence through photostat copy of the agreement and from register of the deed writer. The application was opposed by the plaintiffs alleging that the defendants have not even pleaded that the agreement in question has been lost or destroyed. All averments made in the application were controverted. Learned trial court, vide impugned order Annexure P-6, dismissed the application moved by the defendants. Feeling aggrieved, C. R. No. 6127 of 2010 (O&M) 3 they have filed the instant revision petition. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners vehemently contended that in the written statement, the defendants pleaded that Lal Singh has purchased the suit property from Baldev Singh and this plea is based on the aforesaid agreement. The contention cannot be accepted. There is not even a remote reference to alleged agreement dated 19.10.1983 in written statement Annexure P-2. Consequently, the evidence relating to the said agreement cannot be admitted being completely beyond pleadings. The aforesaid plea in the written statement referred to by counsel for the petitioners relates to purchase of property which could be through sale deed and not through agreement. Secondly, the plea of the petitioners that they were earlier not aware of the agreement in question is also palpably false because while filing written statement on 12.04.2001, photostat copy of the said agreement was annexed. It is thus manifest that the said agreement was within the knowledge of the defendants even when they filed written statement in April 2001, whereas application Annexure P-3 was moved in September 2009 i.e. 8½ years after filing of written statement. Moreover, if, as argued by counsel for the petitioners, the plea in the written statement that Lal Singh purchased the property from Baldev Singh, referred to property C. R. No. 6127 of 2010 (O&M) 4 purchased by Lal Singh through alleged agreement, it would also depict that said agreement was within the knowledge of defendants even at the time of filing of written statement. Petitioners have alleged that while separating valuable documents from unrequired documents, they acquired knowledge of the agreement in question. However, this plea is also completely untenable because the petitioners did not stumble upon the original agreement, while separating the valuable documents from unrequired documents. It is not explained as to how defendants came to know of the alleged agreement just before the filing of application Annexure P-3 for additional evidence. Petitioners have alleged that the original agreement is not in their possession nor it is traceable with Lal Singh or Balwinder Singh. However, there is nothing on record to depict that the alleged agreement is not traceable with Lal Singh or Balwinder Singh or is not available even with the defendants. Mere averment in the application is not sufficient for this purpose. The application has not been supported even by affidavit of the petitioners. There is also no affidavit of Lal Singh or Balwinder Singh that the original agreement is not traceable with them. The said agreement has not even been summoned from Lal Singh or Balwinder Singh. From the aforesaid, it is thus apparent that the defendants moved frivolous application Annexure P-3 to delay the disposal of the suit, which is already a decade old. Defendants had already closed their oral C. R. No. 6127 of 2010 (O&M) 5 evidence and the case was fixed for documentary evidence, when application Annexure P-3 was moved by them, as submitted by the counsel for the petitioners. The application Annexure P-3 is thus completely frivolous and has been moved with oblique and mala fide motive to further delay the disposal of the suit. The impugned order is justified and does not suffer from illegality or jurisdictional error so as to warrant interference in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is completely meritless and is accordingly dismissed in limine. September 27, 2010 ( L. N. MITTAL ) monika JUDGE