CR No.3617/2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CR No.3617/2010 Date of decision: 11.05.2011. Jaswant ....................Petitioner v. Mukhtiar Singh .....................Respondent Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.SR Hooda,Advocate for the petitioner Mr.Vikram Punia,Advocate for the respondent. Jaswant Singh.J. Plaintiff/petitioner has filed the instant revision petition under Article 227 of the Constitution assailing the order dated 12.3.2010 (P4) passed by learned Civil Judge (Senior Division) Sonepat whereby his applications- one for leading secondary evidence and the other for leading additional evidence have been dismissed. It is borne out from the averments made in the revision petition that the suit property, a plot, was allotted to the plaintiff/petitioner in partition of abadi deh of Village vide judgment and decree dated 14.2.1924 passed in partition suit titled Hazari etc. vs. Raje etc. It is further alleged that the respondent/defendant encroached upon some portion of the suit property, resulting into filing of a suit by the petitioner/plaintiff on 7.1.2003 for possession and permanent CR No.3617/2010 2 injunction against the defendant/respondent. The plaintiff/petitioner closed his evidence in affirmative vide statement dated 16.4.2007 reserving his right to challenge the report of Local Commissioner, for whose appointment an application was pending. The dismissal of the said application by the learned trial court vide order dated 19.9.2009 for appointment of a Local Commissioner, is alleged to have necessitated the petitioner/plaintiff to produce the copy of judgment and decree dated 14.2.1924 passed in partition suit titled Hazari etc. v. Raje etc. Accordingly, plaintiff/petitioner moved applications seeking permission to produce copy of judgment dated 31.5.1923 and decree dated 14.2.1924 passed in civil suit titled Hazari etc. vs. Raje etc., as also sought permission to produce site plan of the property and the photocopies of pre-decree and judgment dated 14.2.1924. The defendant/respondent contested both the applications. The learned trial court after hearing both sides dismissed the aforesaid two applications vide impugned order dated 12.3.2010(P4). Hence the present revision petition. It is submitted by the learned counsel for the plaintiff/petitioner that the documents viz. site plan, copy of judgment and decree dated 31.5.1923 and copy of judgment dated 14.2.1924, which are material documents for the proper and just decision of the case and now sought to be produced by way of additional evidence could not be produced as the plaintiff/petitioner was under the belief of appointment of a Local Commissioner. As regards the application for CR No.3617/2010 3 leading secondary evidence, it is submitted that plaintiff had applied vide application no.2299 to obtain certified copies of judgment and decree dated 14.2.1924 which has been returned back with the remarks that the file is in Urdu language and relates to partition of abadi deh which is in deteriorated (torn) condition and the copy cannot be prepared. In these circumstances petitioner, by way of secondary evidence wants to produce and exhibit the photocopies of judgment and decree which are in his possession. On the other hand the learned counsel for the defendant/respondent states that both the applications have been moved at a belated stage when the case is fixed for rebuttal evidence and arguments. It is further submitted that the evidence now sought to be produced had always been in the knowledge of the plaintiff/petitioner and he ought to have produced the same at the relevant time. After having heard learned counsel for the parties and gone through the documents carefully this court is of the opinion that the revision petition deserves to be allowed. It is not in dispute that the petitioner/plaintiff in his suit for possession of the encroached portion of the plot/suit property has based his claim of ownership and possession on the basis of the judgments and decrees dated 31.5.1923/14.2.1924 passed in the partition suit titled as Hazari etc. v. Raje etc. It is also not in dispute that in respect of the identification of the plot/suit property, the petitioner/plaintiff did not prove the site plan as an application for appointment of a Local Commissioner was CR No.3617/2010 4 pending decision at the time of closing of the evidence of the plaintiff and a right was reserved by the plaintiff at the time of closing of the evidence in respect of the report of the Local Commissioner. It also cannot be disputed that subsequently the application for appointment of Local Commissioner was dismissed by the trial court. No doubt, he was required to lead his evidence in respect of the aforesaid judgments and decrees/site plan in his evidence in affirmative, however, keeping in view the fact that these pieces of evidence go to the root of the matter which would assist the court in just and proper and effectively deciding the issue, this court is of the opinion that interest of justice demand that the same be permitted to be led by way of additional evidence. The respondent/defendants would not be prejudiced as they would have an equal opportunity to rebut the same and for the inconvenience they can be suitably compensated. As regards the prayer for leading of secondary evidence in respect of the judgments and decrees dated 31.5.1923/14.2.1924 it is evident that the office concerned on the application for grant of certified copies has reported that “being the file in deteriorated (torn) condition, copy cannot be prepared” which in the opinion of this court would constitute sufficient basis for permission to lead its secondary evidence, as the same is coming from judicial record whose existence cannot be doubted however, its admissibility in evidence or otherwise shall be open to evaluation during the trial. In view of the above, this revision petition is allowed, CR No.3617/2010 5 impugned order dated 12.3.2010(P4) is set aside and the applications for additional evidence (P2) and for leading secondary evidence (P1) filed by the plaintiff/petitioner are allowed subject to payment of costs of Rs.5000/- payable to the defendant/respondent by way of a demand draft as a condition precedent. 11.05.2011 (Jaswant Singh) joshi Judge