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Punjab-Haryana High Court
Surinder Pal vs V on 18 January, 2010

C.R. No.1767 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

C.R. No.1767 of 2009 (O&M)

Date of decision: January 18, 2010.

Surinder Pal

...Petitioner(s)

v.

Harnek Singh

...Respondent(s)

CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG

Present: Shri Pardeep Goyal, Advocate, for the petitioner. Shri Sandeep Goyal, Advocate for

Shri Ajay Pal Singh, Advocate, for the respondent. Rakesh Kumar Garg, J. (Oral):

This is plaintiff's revision petition challenging the order dated 2.3.2009 passed by the trial court whereby his application for adducing additional evidence, has been rejected.

As per the averments made in this petition, the petitioner filed a suit for recovery of money amounting to Rs.7,85,000/- against the respondent on the basis of the regular account books, which is pending at the stage of final arguments. According to the petitioner, the entries of the loan amount were made in the account books which were submitted to the Income Tax Department.

In order to prove his case, the petitioner made an application when the case was at the stage of rebuttal evidence before the trial court for producing the following evidence:-

C.R. No.1767 of 2009 -: 2 :-

1. The concerned officials of the office of Income Tax, Sunam through Income Tax Commissioner,

Patiala with relevant records of Income Tax

returns for the year 1998 to the year 2002 relating to M/s Des Raj Hem Raj, Commission Agents.

2. Paramjit Singh son of Jangir Singh, r/o village Chathe Nakte, Tehsil Sunam, Distt. Sangrur.

3. Baljinder Singh son of Chattar Singh, r/o village Chathe Nakte, Tehsil Sunam, Distt. Sangrur.

4. Rajinder Singh son of Pala Singh, r/o village Nagra, Tehsil & Distt. Sangrur.

5. Balwinder Singh son of Gajjan Singh, r/o village Nagra, Tehsil and Distt. Sangrur.

According to the petitioner, on the aforesaid application, the court ordered for deposit of diet money and process fee for summoning the aforesaid evidence mentioned in the application for 30.1.2007 for adducing evidence in rebuttal. However, vide order dated 20.11.2008 on an application moved by the respondent, the following order was passed:- "Arguments have been heard and record has

been perused.

Against pleadings of parties my learned

predecessor framed issues on 18.11.2002 and 12.2.2004 and only onus of two of the issues is upon defendant and both said issues regarding non joinder of necessary parties and locus standi are mere legal issues and no rebuttal is required from plaintiff and it C.R. No.1767 of 2009 -: 3 :- appears that the application of plaintiff to summon witnesses was allowed inadvertently and the order is accordingly rectified and now case is adjourned to 27.11.2008 for final arguments instead of rebuttal evidence of plaintiff."

The petitioner filed an application for adducing the aforesaid evidence by way of additional evidence. According to the petitioner, the trial court vide the impugned order wrongly and illegally dismissed the aforesaid application of the petitioner.

Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the petitioner was allowed to adduce his evidence in rebuttal but he was stopped later on to produce his evidence merely on the application filed by the respondent and, thus, the action of the trial court dismissing his application after he was allowed to adduce evidence in rebuttal is patently wrong and illegal and, therefore, the petitioner should have been allowed to lead additional evidence which is necessary and material for just and effective adjudication of the case. On the other hand, learned counsel for the respondent has vehemently argued that it cannot be said that additional evidence sought to be produced by the petitioner was not produced inadvertently at the time of adducing evidence in the affirmative as the same was to his knowledge from the very beginning and, thus, no such permission can be granted to the petitioner at the fag end of the case and the impugned order has been passed in accordance with law.

I have heard learned counsel for the parties. A perusal of the record shows that cross examination of the C.R. No.1767 of 2009 -: 4 :- plaintiff/petitioner was deferred at one stage for production of such income tax returns which are sought to be proved now but even thereafter, no such record was produced by him. Thus, this fact alone is sufficient to establish that the additional evidence sought to be produced by the petitioner was to his knowledge from the very beginning and the same was not adduced by the petitioner and now when the case is at the fag end, he cannot be allowed to adduce the aforesaid additional evidence on the ground that the petitioner could not lead the said evidence inadvertently. From the record of the revision petition, it cannot be made out that without the evidence, which is sought to be produced by the petitioner, the court cannot effectively adjudicate the suit for recovery filed by the petitioner. The petitioner cannot take the benefit of the fact that on his application he was allowed to deposit diet money etc. to summon the evidence in rebuttal as vide order dated 20.11.2008, the aforesaid inadvertent mistake to summon the witnesses was rectified by the court and the same was never challenged by the petitioner. Thus, I find no merit in this revision petition. Dismissed.

January 18, 2010. [ Rakesh Kumar Garg ] kadyan Judge