IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4685 of 2009 Date of Decision : November 06, 2009 Amarjit Singh and another ....Petitioners Versus Paramjit Singh .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.S.Rangi, Advocate Mr. J.R.Nain, Advocate T.P.S. MANN, J. The present revision has been filed by the plaintiffs under Article 227 of the Constitution of India with a prayer for setting aside the order dated 28.7.2009 passed by the learned trial Court whereby their application for production of additional evidence was rejected. The plaintiffs had filed a suit against Smt.Balbir Kaur- defendant for specific performance of agreement to sell dated 13.9.1993 and for possession of the suit property. In her written statement, the defendant, who is now dead and represented by her son Paramjit Singh- respondent, denied the execution of agreement to sell as well as receipt of the sale consideration. She pleaded that the agreement to sell was not a genuine document but result of fraud and undue influence. Moreover, last date for execution and registration of the sale deed was not fixed as at that C.R. No. 4685 of 2009 -2- time the land was under mortgage with New Bank of India, Dharodi, since merged with Punjab National Bank, Dharodi. Accordingly, it was agreed that as and when the land would be redeemed the sale deed to be executed within six months thereafter. While leading evidence, the defendant tendered a copy of order dated 25.3.2004 passed by the Sub Divisional Magistrate, Narwana, on the basis of statement made by Shri R.P.Garg, Manager, Punjab National Bank, Dharodi, wherein he had stated that after the compromise, the account was cleared on 26.12.2003 and nothing was due and the bank had no objection in releasing the property. According to the plaintiffs, the loan account of the defendant was settled under a compromise. The principal amount had already been paid on 28.1.1999 and there was some amount of interest pending, which went on accumulating and finally the outstanding amount alongwith miscellaneous expenses amounting to Rs.12,82,979/- was settled by way of compromise, in the sum of Rs.53,000/- out of which Rs.50,000/- was deposited on 20.2.2003 and remaining amount of Rs.3,000/- on 25.7.2003 after a net waiver of Rs.12,29,979/-. After clearance of the loan, the plaintiffs got served a registered legal notice to the defendant to come present on 23.10.2003 at 9.00 A.M. in the office of the Sub Registrar, Narwana, for executing the sale deed but she did not turn up. According to the plaintiffs, though the defendant relied upon the order passed by the Sub Divisional Magistrate, Narwana, wherein it stood mentioned that the date of liquidation of the account was 26.12.2003, the defendant in her written statement had stated that the loan C.R. No. 4685 of 2009 -3- was cleared on 25.7.2003. Accordingly, the plaintiffs filed an application dated 28.5.2009 for leading additional evidence to examine the Manager of Punjab National Bank, Dharodi, alongwith the record of loan case. The application was contested by the defendant. Vide impugned order, the learned trial Court dismissed the application on the ground that no objection had been raised by the plaintiffs at the time of tendering the certified copy of the dated dated 25.3.2004 passed by the Sub Divisional Magistrate, Narwana (Ex.D17); they remained instrumental in seeking adjournments for production of rebuttal evidence for a considerable time; and no attempt was made during this period to move the application. It is not in dispute that alongwith the certified copy of order dated 25.3.2004 (Ex.D17), the defendant also placed on record statement of Shri R.P.Garg, Manager, Punjab National Bank, Dharodi, wherein he stated that the account was liquidated on 26.12.2003 under a compromise. This statement was not formally proved and, therefore, marked as DC. The defendant should have examined Shri R.P.Garg also for proving his statement mark DC but for the reasons best known to her, Shri R.P.Garg was not produced. It might be that the defendant did not want Shri R.P.Garg to be present in the witness box and, thus, being cross-examined by the plaintiffs about the final payment on 25.7.2003 when the final amount of Rs.3,000/- under the compromise was deposited. Though the plaintiffs had already closed their evidence in affirmative and the proceedings had reached at the final stage, yet they were justified in seeking permission to lead additional evidence by C.R. No. 4685 of 2009 -4- examining Shri R.P.Garg, Manager, Punjab National Bank, Dharodi for proving the statement of account so as to establish that the account was finally settled on 25.7.2003. Under the aforementioned circumstances, the learned trial Court was not justified in declining the application filed by the plaintiffs for leading additional evidence by way of examining Shri R.P.Garg, Manager, Punjab National Bank, Dharodi and for proving the statement of account. Resultantly, the revision is allowed, impugned order is set- aside and the application filed by the plaintiffs for leading additional evidence is granted. However, it is made clear that the plaintiffs will be granted only one effective opportunity for examining their additional evidence. ( T.P.S. MANN ) November 06, 2009 JUDGE ajay-1