Civil Revision No. 5834 of 2010 {1} In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 5834 of 2010(O&M) Date of Decision:September 24, 2010 Karma and others ---Petitioners versus Hari Parkash ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.S.S.Virk, Advocate, for the petitioners *** GURDEV SINGH, J. The defendants-petitioners have filed the present civil revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 6.8.2010 passed by Civil Judge(Junior Division) Panipat, permitting the plaintiff-respondent to prove the agreement to sell dated 6.1.2005/27.1.2005 by way of secondary evidence, without setting aside the order dated 3.11.2009, vide which the evidence of the plaintiff had already been closed. The plaintiff filed suit for specific performance against the defendants on the basis of the agreement, which was disputed by the Civil Revision No. 5834 of 2010 {2} defendants. In support of his case, the plaintiff examined himself as PW-1, Jai Parkash, PW-2 and Rakesh Aggarwal, PW-3. However, their cross examination was deferred by the Trial Court without recording any reasons. On that very day, the remaining evidence of the plaintiff was closed by order on the ground that last opportunity had already been granted to him to conclude his entire evidence. For cross examining of the said witnesses and for tendering the documents in evidence, the case was adjourned. After passing of that order, the plaintiff moved an application for permission to prove agreement and the endorsement made thereon, dated 6.5.2005 and dated 27.1.2005, respectively, by way of secondary evidence on the ground that the said document was lost while he was going to his office on the motor cycle and while that document was being kept in the polythene bag of the motor cycle. That application of the plaintiff was contested by the defendants. They came up with the plea that on 25.10.2009, the plaintiff along with two persons came to their village and requested them to return the earnest money. They replied that he failed to fulfill his part of the agreement as a result of which the agreement stood cancelled and the earnest money stood forfeited. They also told that they have entered into another agreement with other person. On the request made by the plaintiff, they agreed to return the amount of `3,90,000/- on the condition that he would return the agreement to sell to them. The plaintiff assured them that he would destroy the agreement himself and would withdraw the suit on 3.11.2009 and it was in pursuance of that promise of the plaintiff that the agreement was destroyed. They also contended that there is every possibility of making forgery in the photo stat copy of the agreement, which the plaintiff wants to prove by way of secondary evidence. Civil Revision No. 5834 of 2010 {3} After hearing counsel for the parties and going through the record of the case, the application was allowed and plaintiff was permitted to prove the agreement and the endorsement thereon by way of secondary evidence. I have heard learned counsel for the petitioners-defendants. It has been submitted by counsel for the defendants that the order passed by the trial court apparently suffers from illegality as the same has been passed after bye passing the order dated 3.11.2009, vide which the evidence of the plaintiff was closed by order. The passing of the impugned order amounts to review of that order and the permission to lead additional evidence, which is not permissible. There is no force in this submission of the counsel for the defendants. It cannot be said that the trial court committed any such illegality or that the impugned order suffers from illegal exercise of jurisdiction. It is not the case of the plaintiff that he wants to examine any other witness to prove the photostat copy of the agreement by way of secondary evidence. He appeared in the witness box as PW-1 and tendered his affidavit by of examination-in-chief, in which he made categorical statement that this agreement was executed in his favour by the defendants. He had brought the original with him in the Court on that day. In all fairness, the defendants should have cross-examined him and the other witnesses on the same day. For the reasons best known to them, they got deferred their cross examination. The trial court after satisfying itself that the original document has been lost, permitted the production of secondary evidence. This order does not amount to bye passing the order vide which the evidence of the plaintiff was closed by order. Civil Revision No. 5834 of 2010 {4} It has also been submitted by the counsel for the defendants that in fact, the original agreement was destroyed by the plaintiff after he received ` 3,90,000/- from them and the granting of permission to the plaintiff for leading secondary evidence will be fatal to the defence of the defendants. This contention is also devoid of merit. It shall be open to the defendants to take that point at the time of final arguments and they will have an opportunity to cross examine the plaintiff and his witnesses on that aspect as they are still to enter the witness box to face their cross examination. In the result, this revision petition being without any merit is hereby dismissed. (GURDEV SINGH) JUDGE September 24, 2010 PARAMJIT