C.R No.4977 of 2010(O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.4977 of 2010(O&M) Date of Decision: 17.11.2011 Dharambir ....Petitioner Versus Baru Ram ....Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ajay Jain, Advocate for the petitioner. Mr. Anurag Jain, Advocate for the respondent. JASWANT SINGH, J C.M.No.26887-C of 2011 Application is allowed. Annexures R.1 and R.2 are taken on record and exemption from filing certified copies of the same is granted. C.R.No.4977 of 2010 By way of filing the present petition under Article 227 of the Constitution, defendant-petitioner has assailed the impugned order dated 22.7.2010 (P.1) passed by the learned Additional Civil Judge (Sr. Division, Hisar vide which an application filed by the plaintiff- respondent for leading additional evidence has been allowed. Brief facts of the case are that the plaintiff-respondent filed a suit for declaration to the effect that he is owner in possession of three storeyed house shown in the site plan attached with the plaint and C.R No.4977 of 2010(O&M) #2# the adjoining house of the defendant-petitioner, which is in a dilapidated condition, has damaged the house of the plaintiff- respondent and caused many cracks, therefore, damages to the tune of Rs.3,29,725/- have been claimed. During the pendency of the suit, an application for leading additional evidence was filed by the plaintiff- respondent, which was allowed by the learned trial Court vide its impugned order, hence the present petition. Learned counsel for the petitioner argues that the impugned order is wholly erroneous and liable to be set aside in view of the fact that the learned trial Court vide its order dated 13.2.2009 has already closed the evidence of the plaintiff-respondent and therefore there was no occasion to permit him to lead the additional evidence by way of impugned order. In support of his arguments, learned counsel cites Chand Singh v. Naranjan Singh and another 1990(1) LJR 719, Bhim Raj v. Jai Bhagwan 2000(3) RCR (Civil) 16, Inder Singh v. Smt Sandokhi Devi Vol. CXL V (2007-1) PLR 290. On the other hand, learned counsel for the plaintiff- respondent defended the impugned order and argued that the additional evidence as sought is very much essential for proper adjudication of the matter in controversy and moreover, the defendant-petitioner has already been compensated by way of costs of Rs.1000/-. In support of his case, he has relied upon the following judgments of this court: i) Hazara Singh v. Bachan Singh 1998(2) RCR (Civil) 357, ii) Chattar Singh v. Mehar Singh 2002 (1) RCR C.R No.4977 of 2010(O&M) #3# (Civil) 757, iii) Basant Raj v. Kaushal Kishore 2005 (3) PLR 76, iv) Hans Raj v. Surinder Kaur & Ors 2010(2) Civil Court Cases 377 v) Narinder Kumar v. Shri Sat Narayan Mandir through Trust 2011 (3) RCR (Civil) 87 After hearing learned counsel for the parties and perusing the paper book, this Court finds merit in the present petition and the same deserves to be allowed. It is not in dispute that the learned trial Court vide its order dated 13.2.2009 closed the evidence of the plaintiff-respondent in view of already having availed ample opportunities and thereafter the case was adjourned to 16.3.2009 for evidence of the defendant-petitioner. It is also not in dispute that the defendant-petitioner has also concluded his evidence on 26.9.2009 and thereafter the case was adjourned to 14.10.2009 for rebuttal evidence, if any and arguments. It is necessary to mention here that after 14.10.2009, the case was adjourned on six different occasions at the request of the plaintiff-respondent but no evidence in rebuttal was led and it is only on 22.1.2010 that an application for permission to lead an additional evidence was filed. In reply thereto, it was specifically submitted that the same is filed just to prolong the litigation and harass the defendant-petitioner. It is also not in dispute that the order dated 13.2.2009 has become final as the same has not been challenged till date by the plaintiff-respondent. There is nothing on record to substantiate that the plaintiff-respondent could not produce the evidence, which is sought to C.R No.4977 of 2010(O&M) #4# be produced by way of additional evidence after exercising due diligence. Merely by alleging that at the time of preparation of the case for arguments, the counsel came to know that most material documents are yet to be proved from one R.K. Nirmal-Architect and valuer, is of no consequence. Moreover, the issues were framed way back in the year 2006 and the plaintiff-respondent was very much aware about his onus to prove the same at the relevant time. In case, the impugned order is sustained and the plaintiff-respondent is permitted to lead additional evidence that would virtually amount to de novo trial. The suit itself is at the stage of final arguments, when the application for leading additional evidence has been filed and in case the plaintiff- respondent is allowed to lead additional evidence at this stage, then the litigation will not come to an end, moreso where plaintiff-respondent himself has been thoroughly negligent in leading evidence in affirmative. It is also an admitted case of the plaintiff-respondent that said R.K. Nirmal was summoned by the learned trial Court and duly served on three occasions but he was not examined for the reasons best known to the plaintiff-respondent. The citation relied upon by learned counsel for the petitioner fully support the preposition of law that in case the evidence of a party is closed by court order after granting sufficient opportunities and the same is not challenged and has attained finality, then it is not permissible for the learned trial Court to allow that party to lead such C.R No.4977 of 2010(O&M) #5# an additional evidence without showing any exceptional circumstance, which admittedly have not been shown by plaintiff-respondents in the present case. The judgments cited by learned counsel for the plaintiffs- appellants are not applicable to the facts of the present case and are distinguishable due to the following reasons: So far as the judgment at Serial No.(i) is concerned, the same relates to the pre-amendment period, when the provisions of Order 18 Rule 17-A were very much available in the CPC and moreover in that case, the handwriting expert being a material witness in regard to the endorsement on mortgage deed in payment of amount for redemption of land in question was to be examined and in those circumstances, the revision petition was allowed. So far as the judgment at Serial No.(ii) is concerned, that also relates to a controversy falling under the provisions of Order 18 Rule 17-A CPC. Moreover, in that case the complete copy of jamabandi (Ex.P.6) and the copy of application, which was moved by the defendant-petitioner itself and was necessary for proper adjudication of the matter in controversy. This Court while dismissing the revision petition specifically observed that there was no chance of fabrication of these documents. In the judgment at Serial No.(iii), the dispute was regarding the proprietorship of a Firm, which was denied by defendant-petitioner and the plaintiff filed an application for additional evidence, which was C.R No.4977 of 2010(O&M) #6# allowed by the learned trial Court by specifically observing that in case the additional evidence is allowed, the same will be helpful in bringing on record the clear picture and the defendant will also be given opportunity to cross examine but here the situation is entirely different. In the Judgment at Serial No.(iv), the application for additional evidence filed by the defendant-petitioner was dismissed and by allowing the revision, this Court specifically observed that two documents, which were sought to be produced by way of additional evidence, were in fact part of the judicial record in the earlier litigation between Gian Singh and the petitioner and as such there was no question of tampering with those documents by any of the parties and in these circumstances by relying upon the Salem Advocates Bar Association, Tamil Nadu v. Union of India 2005 (2) Apex Court judgment 492, the revision petition was allowed. In judgment at Serial No.(v) also, this Court came to the conclusion in a matter arising out of learned Rent Controller dismissing the application for additional evidence that the additional evidence, which was sought to be produced on record, was sanctioned site plan of the construction on the demised premises, order of sanctioning the site plan,statements of parties in a dispute and an order of a Civil Court and allowing the revision specifically observed that these documents could not have been manufactured by the petitioner rather coming from the proper custody of authorities either judicial or quasi judicial, thus, not helpful to the petitioner. There is one additional factor in the C.R No.4977 of 2010(O&M) #7# judgments at Serial Nos.(i),(ii) and (iii) that neither the cases were at the final stages nor there was/were any order of Court closing the evidence by court order. Keeping in view the facts and circumstances of the present case, present petition is allowed and the impugned order dated 22.7.2010 (P.1) passed by the learned Additional Civil Judge (Sr. Division, Hisar is set aside. November 17, 2011 ( JASWANT SINGH ) manoj JUDGE