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2011 DIGILAW 2322 (HP)

Kesar Singh v. Tilak Raj

2011-07-20

DEEPAK GUPTA

body2011
JUDGEMENT Deepak Gupta, J. (Oral) By means of this petition, the petitioner has challenged the order dated 15.02.2011 passed by the Civil Judge (Senior Division), Court No. I, Amb, rejecting the application filed by the petitioner (hereinafter referred to as ‘the plaintiff’) seeking permission to lead additional evidence by summoning the Record Keeper and one Shri Surjit Singh, retired DRO. 2.Briefly stated, the facts of the case are that the plaintiff filed a suit for possession claiming that the defendants had encroached upon his land. The defendants denied that they had encroached upon the land of the plaintiff. Thereafter, issues were framed in the year 2004 and the plaintiff took as many as nine opportunities to lead evidence. It also appears that in the year 2004, the petitioner/plaintiff approached the Assistant Collector, Amb and on his orders, demarcation of the land was got done from one Shri Surjit Singh, retired DRO. This demarcation was conducted on 31st December, 2004. Though many opportunities were taken thereafter to lead evidence, no attempt was made to seek permission of the court to examine Shri Surjit Singh, retired DRO to prove his said demarcation report. 3.The matter does not end here. The defendants led evidence and, thereafter, the plaintiff was granted permission to lead rebuttal evidence. He led and closed his rebuttal evidence. Then again, he did not seek permission of the Court to examine Shri Surjit Singh. Four adjournments for arguments were taken by the parties and at this stage, the plaintiff moved the application. 4.It may be true that the document in question cannot be said to be irrelevant to decide the matter. Normally, this Court is liberal while granting permission in such cases to a party. However, the party seeking such liberty from the Court must atleast come with some viable explanation as to why the delay has been caused. The report of Shri Surjit Singh was available with the party as is obvious from the fact that the same was tendered in evidence by the counsel for the plaintiff at the time of leading of affirmative evidence. A specific objection was raised by the defendants that this report could not be tendered in evidence and should have been proved. The report of Shri Surjit Singh was available with the party as is obvious from the fact that the same was tendered in evidence by the counsel for the plaintiff at the time of leading of affirmative evidence. A specific objection was raised by the defendants that this report could not be tendered in evidence and should have been proved. The said objection was raised in the year 2006 and no material has been placed on record to show what the plaintiff was doing from 2006 to 2010 with regard to this objection. Even to a novice in the profession, it would be apparent that the report of Shri Surjit Singh could be proved by him only and could not be tendered in evidence directly. 5.No doubt, the rules of procedure are not meant to thwart justice, but at the same time, these rules cannot be used to help indolent litigants or litigants who sleep over their rights. This is a classic case of a person having knowledge of the document, knowing that the other side has objected to the document being tendered in evidence, but still waiting for five long years before seeking permission to examine the person whose evidence is necessary to prove the document. 6.If the application is allowed, it would mean that virtually, trial would start again because again the defendants have to be given an opportunity to counter the evidence led by the plaintiff. The suit was filed in the year 2000 and after eleven year, such an application cannot be allowed. 7.Therefore, I find no error in the order of the learned trial Court. The petition is accordingly rejected. No order as to costs.