CIVIL REVISION NO.3578 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 07, 2008 Anurag and another .....Petitioners VERSUS State Bank of Patiala ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Muneshwar Puri, Advocate, for the petitioner. **** RANJIT SINGH, J. The respondent-plaintiff is granted permission to lead additional evidence by Civil Judge (Junior Division), Hisar. Aggrieved against the same, the petitioner has impugned the said order by filing the present revision petition. The facts, in brief, are that the respondent-plaintiff Bank has filed a suit for recovery of sum of Rs.3,14,296/-. The petitioner- defendant contested the suit. The petitioner, however, died during the pendency of the suit and his legal representatives were accordingly impleaded. The parties to the suit concluded their evidence and when the case was fixed for rebuttal evidence, the CIVIL REVISION NO.3578 OF 2008 :{ 2 }: application was moved by the Bank for leading additional evidence on the plea that inadvertently some witnesses produced by the plaintiff-bank could not be completely cross-examined despite the fact that they were present and the evidence was ordered to be closed. It is further pleaded that the petitioner-defendant had embezzled a huge amount and, thus, the Bank should not be made to suffer the consequences arises out of this inadvertent omission. The record would show that Sushil Kumar Jain (PW1), Sher Singh (PW2) and R.K.Madan (PW3) were examined on behalf of the respondent-plaintiff. Cross-examination of Sher Singh (PW2) was concluded on 26.5.2006 whereas cross-examination of Sushil Kumar Jain (PW1) could not be concluded due to shortage of time and it was deferred. Cross-examination of R.K.Madan (PW3) could not be conducted at all and subsequently order closing the evidence of the respondent-plaintiff was made on 4.2.2008. It appears that this has mainly happened due to the factum of death of the defendant as the case remained pending for impleading the L.Rs of the petitioner- defendant and in this confusion, the witnesses namely, Sushil Kumar Jain and R.K.Madan could not be subjected to cross-examination. Considering these facts, the Trial Court has partly accepted the prayer of the respondent-plaintiff. The further cross-examination of Sher Singh (PW2) has not been allowed as it was already complete. However, Sushil Kumar Jain (PW1) and R.K.Madan (PW3) have been directed to be summoned for facing the cross-examination on payment of Rs.2,000/- as costs. This order is impugned by the petitioner. CIVIL REVISION NO.3578 OF 2008 :{ 3 }: Learned counsel for the petitioner contends that where an evidence of a party is closed by an order and the same is not challenged by way of revision or otherwise, then the said party can not be allowed to produce same evidence by way of additional evidence without bringing their case strictly within the provisions of Order 18 Rule 17A CPC. In support of this submission, the counsel has relied on Bhim Raj and others Vs. Jai Bhagwan and others, 2000(2) PLR 208. He has further referred to the observations made in the case of Sukhdev Singh Vs. Gurmukh Singh, 1998(3) PLR 46. In this case, the evidence of the plaintiff was closed by speaking order. No steps were taken to get the documents in question from Pakistan for about four years. It was held that it can not be said that despite due diligence the respondent-plaintiff could not bring on record the documents, which they were seeking to bring. Accordingly, it was held that plaintiff would not be entitled to lead additional evidence. I have considered the submissions made by the learned counsel. In my view the ratio of law laid down in Bhim Raj's case (supra) and Sukhdev Singh's case (supra) would not apply to the facts of the present case. In Bhim Raj's case (supra) evidence of the defendant was closed by the Court by an order, which was not challenged. Thereafter, an attempt was made to adduce the same evidence by way of additional evidence. His prayer was declined on the ground that his case strictly did not fall within the provisions of Order 18 Rule 17A CPC. It may need a notice that the provisions of Order 18 Rule 17A CPC have since been deleted and permission to CIVIL REVISION NO.3578 OF 2008 :{ 4 }: lead additional evidence is now depend upon exercise of inherent power available with the Court. Inherent powers of the Court are to be exercised to do substantial justice between the parties. In the cases cited before me, it was specifically noticed that there was nothing on record to show that the party could not produce their evidence inspite of exercise of due diligence. Under these circumstances, they were held not entitled to produce additional evidence. Similar is the proposition of law that would emerge from the case of Sukhdev Singh (supra). The absence of due diligence on the part of the respondent-Bank can not be attributed on their part in the present case. The Bank had produced witnesses whose examination-in-chief was recorded. It appears that basically due to confusion or some inadvertence, may be on the part of the counsel, that two of the witnesses could not be subjected to cross-examination. This appears to have escaped the notice of the Court as well and accordingly the order closing the evidence of the respondent-plaintiff was made. It can not be said that Bank is now wanting to adduce any evidence which it could not earlier bring for want of due diligence on its part. It appears that the witnesses could not be cross-examined because of death of the defendant who was to be substituted by his L.Rs, which process was on. It is not even a prayer for leading additional evidence in strict sense. Basically, it is a case of recall of witness for the purpose of facing cross-examination. The late petitioner is otherwise accused of embezzlement and the Bank needs to be afforded proper opportunities to prove its assertion. Technicalities CIVIL REVISION NO.3578 OF 2008 :{ 5 }: should not provide an escape route to delinquent employee who is accused of embezzlement. Once the examination-in-chief of the witnesses is already on record, they need to be subjected to cross- examination so that their evidence is taken into consideration for deciding the issues involved. It is not a prayer for allowing additional evidence being a new evidence altogether. Accordingly, I am not inclined to interfere in exercise of jurisdiction in the judgment passed by the Trial Court, which appears to be fair and just. The revision petition is accordingly dismissed. July 07,2008 ( RANJIT SINGH ) khurmi JUDGE