1 C.R. No. 1446 of 1991 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Civil Revision No. 1446 of 1991 Date of decision: 23.9.2009 Yash Pal Pruthi --- Petitioner Versus Ved Parkash --- Respondents CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL ---- PRESENT: Mr. M.S. Rakkar, Senior Advocate with Mr. J.S. Negi, Advocate for the petitioner. Mr. A.K. Khungar, Advocate for respondent Nos. 3 to 5. ---- AJAY KUMAR MITTAL, J. This is plaintiff’s revision petition filed under Section 115 of the Code of Civil Procedure (for short “the Code”) challenging order dated 23.4.1991, passed by the trial court whereby an application moved by the plaintiff under Order 18 Rule 17-A of the Code for permission of the court to lead additional evidence was dismissed. In short, the facts of the case are that the plaintiff filed a suit for possession of a house. As per averments of the plaintiff, one Daulat Ram was owner of the said house who had executed a Will dated 16.12.1981 in favour of the defendant, Ved Parkash under pressure. He later on cancelled the said Will on 22.12.1983 and executed another 2 C.R. No. 1446 of 1991 Will dated 22.12.1983, i.e. the same day, in favour of the plaintiff and pursuant to this subsequent and last Will, the plaintiff had become owner of the said house. The suit was contested. One of the issues framed in the suit was: “Whether the plaintiff is entitled to the possession of the property in dispute in the basis of the Will dated 22.2.1983”. The plaintiff, besides producing other evidence also examined one of the attesting witnesses to the Will, namely, Raghbir, and closed his evidence on 14.2.1989. The defendant thereafter closed his evidence in 1991 and the suit was fixed for rebuttal evidence of the plaintiff. On 4.3.1991, the plaintiff moved an application for permission of the Court to examine another attesting witness to the Will, one official from the office of Sub Registrar, Sriganganagar and produce a copy of jamabandi by way of additional evidence. It was averred on behalf of the plaintiff that the other attesting witness to the Will, namely, Som Dutt Sharma, could not be examined earlier. It was further stated that it was essential to also examine one Hukam Chand Chhabra, an officer from the office of the Sub Registrar, Sri Ganganagar, and produce a copy of jamabandi by way of additional evidence. It was further averred that the above evidence could not be produced despite due diligence at the time when evidence was being led. The application was opposed by the other side. 3 C.R. No. 1446 of 1991 The application was dismissed by the trial court vide order dated 23.4.1991 which has been impugned in the present revision petition. I have heard learned counsel appearing for the parties and have gone through the record with their assistance. Mr. M.S. Rakkar, Senior Advocate, learned counsel appearing for the petitioner submitted that under provisions of Order 18 Rule 17-A of the Code of Civil Procedure as it existed on the statute at the time when the application was moved and in the facts and circumstances of the case, the examination of the above witnesses and production of the jamabandi by way of additional evidence deserve to be allowed for the just decision of the suit and the court can permit a party to produce evidence at any stage on such terms as it may deem to be just. Learned counsel referred to sub-rule (4) of Rule 2 of Order 18 as it existed on the statute on the relevant date to contend that the court may, for reasons to be recorded, allow a party to examine any evidence at any stage. The counsel also drew attention of the Court to Explanation (1) to the aforesaid provision which has been inserted by the amendment made by this Court to show that by virtue thereof the court has been empowered to direct any evidence to be produced or examine any witness at any stage. Learned counsel relied upon Balwant Singh Versus Krishan Kumar and another, 1978(2) Rent Law Reporter 681, Raj Kumar Versus Improvement Trust City Hansi Through its Administrator Improvement Trust and others, 1988(2) P.L.R. 196 and Ujagar Singh and another Versus Nahar Singh and 4 C.R. No. 1446 of 1991 others, 1990(2) Revenue Law Reporter 99 in support of his submission. According to the learned counsel, the trial court has erred in declining the permission to the plaintiff to produce the aforesaid additional evidence. Controverting the submissions of the learned counsel for the petitioner, learned counsel appearing for the respondents supported the order passed by the trial court. Learned counsel submitted that the trial court while declining the production of additional evidence had given cogent reasons. The counsel further submitted that question of examining the other attesting witness to the Will, especially when, one of the attesting witnesses has already been examined and he has supported the case of the plaintiff, does not arise. The counsel laid stress that even the examination of the Clerk from the office of Sub Registrar, Sriganganagar is not necessary because according to the plaintiff he is to be examined to prove the registration of the Will in question, but the Will has already been exhibited on record. The counsel contended that copy of jamabandi which is sought to be produced regarding the residential house, is not relevant and the material jamabandi has already been exhibited on record as Exhibit PW2/B, and therefore, the production thereof by way of additional evidence sought by the plaintiff cannot be allowed. On the strength of the aforesaid pleas, the counsel argued that the plaintiff had closed evidence by making statement on 14.2.1989 and the counsel for the petitioner has not been able to show to the court that the evidence 5 C.R. No. 1446 of 1991 sought to be produced by way of additional evidence could not be earlier produced despite exercise of due diligence. On consideration of the matter, I do not find any merit in this revision petition. Order 18 Rule 17-A of the Code as it existed at the relevant time reads thus: “17-A. Production of evidence not previously known or which could not be produced despite due diligence- Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.” A perusal of the aforesaid provision shows that a party is required to satisfy the court that the evidence sought to be produced by way of additional evidence, after the exercise of due diligence, was not within his knowledge or could not be produced at the time when the party was leading evidence. Learned counsel for the petitioner has not been able to show as to what prevented the petitioner to produce the evidence at the time when the plaintiff was leading his evidence. Further examining the necessity and relevancy of the evidence sought to be produced by way of additional evidence, it needs to be noticed that the plaintiff has already examined one of the attesting witnesses, Raghbir. He could not justify the examination of the other attesting witness to the Will when the witness earlier examined has supported 6 C.R. No. 1446 of 1991 the case of the plaintiff as informed by the counsel for the respondents. Further, the original Will having already been exhibited, counsel for the petitioner could not justify the examination of Hukam Chand Chhabra, an officer of the office of the Sub Registrar, Sriganganagar. No explanation much less a satisfactory explanation has been furnished by the counsel for the petitioner for justifying the production of jamabandi, particularly, when relevant jamabandi relating to the residential house has already been exhibited. Reverting to the case law relied upon by the counsel for the petitioner, suffice it to say, that the judgments cited by the counsel are on different footing than the facts of the case in hand wherein, in the particular facts and circumstances of the case, the trial court had permitted the party to lead additional evidence. The aforesaid case law does not support the case of the plaintiff-petitioner for allowing additional evidence. Adverting to sub-rule (4) of Rule 2 of Order 18 of the Code and Explanation (1) appended thereto, no exception can be taken to the legal provision. However, the plaintiff-petitioner would have been justified to seek permission of the court to lead additional evidence if he had been able to show that production of evidence now sought to be produced by way of additional evidence was necessary for just decision of the suit. The approach adopted by the trial court while declining the application of the petitioner cannot be faulted. In view of the above, finding no merit in the revision petition, he same is dismissed. 7 C.R. No. 1446 of 1991 The parties through their counsel are directed to appear in the trial court on 4.11.2009, for further proceedings. Since the suit relates to the year 1989, the trial court shall make sincere efforts to dispose of the same expeditiously, on or before 31.3.2010. (AJAY KUMAR MITTAL) September 23, 2009 JUDGE *RKMALIK*