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2010 DIGILAW 3010 (PNJ)

Atma Singh v. Bhupinderpal Singh

2010-11-10

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. Atma Singh and Pawan Kumar, who are respondents no.8 and 10 in the trial court, have filed the instant revision petition under Article 227 of the Constitution of India challenging order dated 22.10.2010 (Annexure P-l) passed by learned Additional Civil Judge (Senior Division), Faridkot, thereby partly allowing application moved by respondents no.1 and 2 herein (applicants before the trial court) for additional evidence. 2. Respondents no.1 and 2 have filed petition under Order 39 Rule 2-A of the Code of Civil Procedure (in short - CPC), for taking action against petitioners and proforma respondents no.3 to 10 herein for disobedience of temporary injunction order dated 22.12.2004. Respondents no.l and 2 have alleged in their petition that affidavit regarding temporary injunction was submitted in the office of Sub-Registrar (petitioner no.l herein) before lunch on 22.12.2004, but in spite thereof, sale deed was registered at 04:45 P.M. However, stand of the petitioners and proforma respondents no.3 to 10 is that the said affidavit was furnished in the office of Sub Registrar at 04:55 P.M. i.e. after registration of the sale deed. 3. The parties led their evidence in support of their respective versions. Even arguments were concluded. Thereafter, an application was moved on behalf of the alleged contemners for production of original record containing the original affidavit, although copy of the affidavit was already on record of the trial court. Pursuant thereto, original affidavit was produced in the trial court. It was thereafter that respondents no.l and 2 herein moved application for examining Mr. Dilshad Singh Dhaliwal, Advocate and Mr. Davinderpal Singh Bhola, Advocate (Notary) as witnesses and also for recalling petitioner no. 1 herein for further crossexamination. Tne said application has bees partly allowed by the trial court by impugned order Annexure P-1, thereby permitting respondents no. 1 and 2 to examine Mr. Dilshad Singh Dhaliwal, Advocate and Mr. Davinderpal Singh Bhola, Advocate (Notary) as witnesses, but prayer to recall petitioner no. 1 for further cross-examination has not been allowed. Feeling aggrieved, the install revision petition has been preferred by the petitioners, who are respondents no.8 and 10 in the trial court. 4. I have heard learned counsel for the parties and perused the case file. 5. Learned counsel for the petitioners vehemently contended that execution of the affidavit in question was not in dispute. Feeling aggrieved, the install revision petition has been preferred by the petitioners, who are respondents no.8 and 10 in the trial court. 4. I have heard learned counsel for the parties and perused the case file. 5. Learned counsel for the petitioners vehemently contended that execution of the affidavit in question was not in dispute. Even respondents in the trial court admitted that the said affidavit had been submitted in the office of Sub Registrar and the only dispute was regarding the time of submission of the said affidavit in the office of Sub Registrar. Learned counsel for the petitioners vehemently contended that during arguments in the main case, question arose regarding evidence to prove that the affidavit had been sub- mitted before the registration of the sale deed and application for additional evidence was moved after conclusion of final arguments in the main case to fill up the said lacuna. 6. On the other hand, learned counsel for respondents no.l and 2 contended that respondents no. 1 and 2 were only informants regarding violation of the court order and it is for the Court to inquire into the matter and to punish the contemners. It was contended that the Court could allow evidence, which is necessary for proper adjudication of the lis. 7. I have carefully considered the rival contentions. 8. It is undisputed that final arguments in the case had been concluded. Even alleged contemners did not dispute that affidavit in question had been submitted in the office of Sub Registrar, as is evident from the impugned order itself and the only dispute was regarding the time of submission of the affidavit i.e. before or after the registration of the sale deed on 22.12.2004. Respondents no.1 and 2 have been permitted to examine the two witnesses by additional evidence to prove the time of the affidavit. This could not be done. There is no explanation why these witnesses were not examined when respondents no.l and 2 were leading their evidence. They could not be permitted to fill up the lacuna in their case by way of additional evidence, even after final arguments in the main case had been concluded, when no ground, much less sufficient ground, was advanced for not examining these witnesses at the appropriate stage. They could not be permitted to fill up the lacuna in their case by way of additional evidence, even after final arguments in the main case had been concluded, when no ground, much less sufficient ground, was advanced for not examining these witnesses at the appropriate stage. Learned trial court, in fact, proceeded on the wrong assumption that the lleged contemners themselves wanted to produce the same additional evidence, but in fact, it is not so. The alleged contemners had moved application for production of original affidavit only and not for proving time of submission of the affidavit in the office of Sub Registrar. Examination of these two witnesses, as permitted by the trial court, at this stage, would amount to filling up the lacuna in the case of respondents no. 1 and 2 and it would cause serious prejudice to the alleged contemners. 9. For the reasons aforesaid, I find that the impugned order of the trial court is completely illegal and suffers from jurisdictional error. Accordingly, the instant revision petition is allowed and impugned order dated 22.10.2010 (Annexure P-1) passed by the trial court is set aside and application moved by respondents no. 1 and 2 herein for additional evidence in the trial court stands dismissed. Learned counsel for respondents no.1 and 2 states that both the witnesses Mr. Dilshad Singh Dhaliwal, Advocate and Mr. Davinderpal Singh Bhola, Advocate (Notary) have since been examined as witnesses pursuant to impugned order of the trial court. In view of setting aside of the impugned order of the trial court, statements of the said two witnesses shall not be read in evidence.