CR No.5115 of 2010 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5115 of 2010 (O & M) Date of decision: 17.08.2010 Gurmeet Singh .. Petitioner Versus M/s Aggarwal Traders Commissioner Agents through its Proprietor .. Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sukhjit Singh, Advocate for the petitioner. * * * * Mehinder Singh Sullar, J. (Oral) The epitome of facts, relevant for disposal of present revision petition and, emanating from the record are, that M/s Aggarwal Traders Commissioner Agents, respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for recovery of Rs.7,37,320/- on the basis of account books (bahi entries) against Gurmeet Singh, son of Gurdev Singh, petitioner-defendant (for short “the defendant”). 2. The petitioner-defendant contested the suit, stoutly denied the allegations contained in the plaint and prayed for dismissal of the suit. The evidence of the defendant was closed by the trial Court by virtue of order dated 25.05.2010. 3. The petitioner-defendant moved an application for permission to lead additional evidence to prove the affidavit of Darshan Singh previous accountant (Munim) of the plaintiff-Firm, inter alia, pleading that during the course of leading his evidence, he received an affidavit (Annexure P-1) of one Darshan Singh, who was working as a Munim with plaintiff-firm, which would go to show that the entries dated 05.11.2003 and 7.11.2003, on the basis of which, the present suit was CR No.5115 of 2010 (O & M) ::2:: filed, are manipulated and result of fraud. The petitioner wanted to examine said Darshan Singh to prove his affidavit. The defendant claimed that he was suffering from knee disease and was unable to move from one place to another. Due to this reason, he could not instruct his counsel. Now, his son contacted and apprised his counsel with regard to the affidavit of Darshan Singh, previously Munim of the plaintiff-Firm. That being so, the defendant filed an application for additional evidence to permit him to prove the affidavit of aforesaid Darshan Singh-Munim. 4. The plaintiff contested the prayer of the defendant, filed the reply, inter alia pleading that five opportunities were granted to the defendant to conclude his evidence. His evidence was rightly closed by the trial Court. Concisely, according to the plaintiff-Firm that no ground for permitting the defendant to produce additional evidence is made out and prayed for dismissal of the application. 5. The trial Court dismissed this application of the defendant vide impugned order dated 15.06.2010. The operative part of which is as under:- “The defendant examined Gurmit Singh as DW1, Bikram Singh as DW2 but he failed to lead further evidence despite last opportunity and even undertaking given by his counsel on 5.4.2010 and 11.5.2010 so the evidence of the defendant was closed by order on 25.5.2010 and when the case was fixed for rebuttal evidence, the defendant moved the instant application. In the additional evidence defendant intend to prove the affidavit of Darshan Singh son of Jarnail Singh dated 4.1.2005. perusal of file reveals that earlier said witness was summoned by the plaintiff in his evidence but he did not appear. So, the defendant could examine the said witness when he was leading his evidence. Thus there is no due diligence on the part of the defendant. The instant application has been filed just to delay this case. Hence, the same is dismissed”. 6. The petitioner-defendant did not feel satisfied with the impugned order and filed the present revision petition. 7. As is evident from the record that petitioner-defendant sought to prove the affidavit (Annexure P-1) of Ex-Munim of plaintiff-Firm by way of additional CR No.5115 of 2010 (O & M) ::3:: evidence. The trial Court rejected the application for additional evidence not on the ground that the document sought to be proved by way of additional evidence is not relevant to the controversy involved in the suit. The main grounds, which appear to have been weighed with the trial Court that the additional evidence cannot be allowed as Darshan Singh, son of Jarnail Singh was earlier summoned by the plaintiff in his evidence, but, he did not appear. To my mind, that is not a cogent ground to dismiss the application for additional evidence filed by the defendant to prove the affidavit of Darshan Singh-Munim. 8. True, ex facie, the defendant appears to be somewhat negligent but that ipso facto is not the sole ground to deny him the opportunity, particularly, when the plaintiff can be compensated with the heavy compensatory costs. 9. Having heard the learned counsel for the defendant, having gone through the record with his valuable help, to my mind, although more than sufficient opportunities have already been granted to him to conclude his evidence, but still taking into consideration, the explanation put forth by him that he could not instruct his counsel with regard to the affidavit of Darshan Singh, owing to his knee disease, to me, it would be expedient and in the interest of justice to grant one last opportunity to prove the affidavit of Darshan Singh, previous Munim of the plaintiff-Firm in order to decide the real controversy between the parties. I also hereby exempt the issuance of notice to respondent-plaintiff in order to avoid its litigation expenses and the delay in disposal of the suit for recovery filed by it, particularly, when plaintiff can well be compensated by adequate compensatory costs. 10. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of decision of the main suit, the revision petition is hereby accepted. The impugned order is set aside and the application for additional evidence of defendant stands accepted. The trial Court is directed to grant one opportunity to the defendant to CR No.5115 of 2010 (O & M) ::4:: prove the affidavit of Darshan Singh-Munim by way of additional evidence, failing which, his evidence would be deemed to have been closed by the order of this Court. However, this would be subject to payment of Rs.5,000/- as compensatory costs by the defendant. (Mehinder Singh Sullar) August 17, 2010 JUDGE sukhpreet Whether to be referred to report ? Yes/No