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2002 DIGILAW 388 (PNJ)

Krishan Kumar v. Manish Kumar

2002-04-09

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 21.3.2002 dismissing the application of the plaintiff-petitioner filed under Order 18 Rule 17-A of the Code of Civil Procedure, 1908 (for brevity, the Code) for adducing additional evidence. 2. Brief facts of the case which led to the filing of the present petition are that the plaintiff-petitioner has filed a civil suit No. 12 of 2001 on 24.7.1993/25.9.2001 for possession by ejecting the defendant-respondent from the suit property on the ground that the property has been newly constructed in the year 1990. The defendant-respondent while cross-examining the plaintiff-petitioner made a suggestion that the lintel of the shop of Gulshan Kumar is the same as that of suit property. The defendant-respondent also simultaneously tendered receipt of payment of rent in respect of shop of Gulshan Kumar as Ec.D.1 which is of the year 1987. From this evidence, the defendant-respondent sought to establish that the suit property alongwith the shop of Gulshan Kumar was in existence in the year 1987. According to the plaintiff-petitioner, the factual position is that the shop in possession of Gulshan Kumar was constructed in the year 1990 itself. He has further averred that the brother of the plaintiff-petitioner Bharat Bhushan, who is the owner of the shop which was possessed by Gulshan Kumar, had also filed a suit for possession against Gulshan Kumar. In that suit, Gulshan Kumar had filed his written statement and the rent note of the year 1990 in favour of Bharat Bhushan was also produced. By way of additional evidence the plaintiff- petitioner wants to bring on record the copies of plaint, written statement and rent note in favour of Bharat Bhushan executed by Gulshan Kumar on the ground that he did not have any knowledge of the aforesaid documents at the time when he was leading his evidence despite exercise of due diligence. The defendant-respondent filed reply to the application taking various objections and controverted all the allegations. It has further been asserted that all those facts which are now sought to be brought on record by adducing additional evidence were well within the knowledge of the plaintiff- petitioner. The defendant-respondent filed reply to the application taking various objections and controverted all the allegations. It has further been asserted that all those facts which are now sought to be brought on record by adducing additional evidence were well within the knowledge of the plaintiff- petitioner. After hearing the arguments, the Civil Judge dismissed the application by recording the following order : "After perusing the documents placed on the file, pleadings of the parties and arguments advanced by counsel for both the parties, it emerges out that the plaintiff filed the present application on 19.2.2002 when the case was fixed for arguments. The present application filed by the plaintiff alleging there in that he wants to produce on record the copy of plaint, written statement and rent note in favour of Bharat Bhushan by Gulshan Kumar in the case titled Bharat Bhushan v. Gulshan Kumar by way of additional evidence. The present suit filed by the plaintiff on 19.7.1993 suit for ejectment and filing the written statement by the defendants and issues were framed on 22.2.1986 by then Additional Civil Judge (Sr. Divn.), Kaithal in which the issue regarding construction in the year of 1990 was framed and both the parties led their evidence. The evidence of the plaintiff was closed by order of the court after last opportunity by the then Addl. Civil Judge (Sr. Divn.) vide order dated 27.9.2000 and the defendant also concluded his evidence to rebut the evidence of the plaintiff. Now, the plaintiff alleged in the application that while crossing in the deposition of the plaintiff, the defendant suggested that lintel of the shop of Gulshan Kumar is same as that of suit property and simultaneously entered the receipt of payment of rent in respect of shop of Gulshan Kumar as Ex.D1 of 1987. But the present case is filed by Krishan Kumar against Munish Kumar regarding the property bearing MCK No. 526-A/13 situated in the area of Jind Road. Amrit Building opposite Randhir Cinema, Kaithal. The plaintiff had knowledge about the documents which he wants to produce now. Hence, there is no case made out for production of additional evidence under order 18 rule 17-A CPC. Further the evidence of the plaintiff was closed by the order of Court. Amrit Building opposite Randhir Cinema, Kaithal. The plaintiff had knowledge about the documents which he wants to produce now. Hence, there is no case made out for production of additional evidence under order 18 rule 17-A CPC. Further the evidence of the plaintiff was closed by the order of Court. The evidence can be permitted to led by way of additional evidence which was sought not in the knowledge of the party or could not produce despite the due diligence, when the defendant produced the evidence, then to rebut the evidence of the respondent, the plaintiff has no right to file the application for additional evidence only to rebut the evidence of the respondent. Further the plaintiff wants to produce the documents which are not necessary for proper adjudication of the dispute between the parties. No doubt the dictum laid down in the authorities referred by counsel for the plaintiff is application to the case when the party failed to produce evidence after due diligence but in the present case in hand documents were within the knowledge of the petitioner and evidence was closed by the court by passing speaking order. So, it could not be said that despite due diligence, documents could not be brought on record by the petitioner and the dictum laid down in the authority referred by counsel for the respondent/defendant are applicable to the fact or the present case. In these circumstances, the application is not maintainable at the late stage." 3. I have heard Ms. Rahish Pahwa, learned counsel for the plaintiff-petitioner and have perused the record with her assistance 4. Learned counsel has argued that the evidence which the plaintiff-petitioner wanted to produce is documentary evidence in the shape of copies of plaint, written statement and rent note and no court time would be wasted. She has further pointed out that delay is no ground to refuse adducing of additional evidence because it would be in the interest of justice to allow these documents to place on record. She has placed reliance on four judgments rendered by this Court which are as under : Ram Singh v. Pirti and others, 1997(1) Civil Court Cases 667. Raju Sharma v. Pardeep Kumar and others, 1999-1(121) P.L.R. 612. Sarwan Singh v. Nand Singh, 1998(2) R.C.R.(Civil) 500. Chandgi v. Mehar Singh and others, 1998(2) Civil Court Cases 280. 5. She has placed reliance on four judgments rendered by this Court which are as under : Ram Singh v. Pirti and others, 1997(1) Civil Court Cases 667. Raju Sharma v. Pardeep Kumar and others, 1999-1(121) P.L.R. 612. Sarwan Singh v. Nand Singh, 1998(2) R.C.R.(Civil) 500. Chandgi v. Mehar Singh and others, 1998(2) Civil Court Cases 280. 5. I have thoughtfully considered the submissions made by the learned counsel and regret my inability to accept the same. The Additional Civil Judge has closed the evidence of the plaintiff-petitioner by order dated 27.9.2000. Thereafter, the defendant-respondent also concluded his evidence to rebut the evidence of the plaintiff-petitioner. Moreover, the case is now fixed for arguments. It has further been concluded by the Civil Judge that the plaintiff-petitioner had knowledge about the documents which the plaintiff- petitioner wanted to produce were not necessary for proper adjudication of the dispute between the parties. In totality of the circumstances, it cannot be argued that any of the judgments relied upon by the learned counsel would support the case of the plaintiff-petitioner. The Additional Civil Judge has concluded that the documents are not even necessary for deciding the issue raised between the parties. This finding has neither been assailed by the plaintiff-petitioner nor any of the judgments relied on by the learned counsel support the view that even if additional evidence is found to be unnecessary the application under order XVIII rule 17-A of the code should be permitted. Therefore, I am of the considered opinion that there is neither any irregularity nor any illegality in the order passed by the Civil Judge warranting interference by this Court in its revisional jurisdiction under section 115 of the Code. 6. For the reasons recorded above, this revision petition fails and is dismissed. Petition dismissed.