HANS RAJ Vs. SURINDER KAUR AND OTHERS

JUDGEMENT

(1.) Challenge in the present petition is to the order dated 15.12.2009, passed by the learned court below, whereby the application filed by the petitioner- defendant for permission to lead additional evidence was dismissed.

(2.) Briefly, the facts are that respondent No. 1-plaintiff filed a suit for declaration claiming that she was owner in possession of the suit land as per sale deed dated 5.12.1967 along with one room constructed thereon. Further challenge was made to the order dated 24.12.2001, passed by the Secretary, Municipal Council, Thanesar. After the parties had led their evidence, the petitioner- defendant filed application seeking permission to lead additional evidence in support of the stand taken by him in the written statement filed, which could not be substantiated in the evidence already led. The learned court below dismissed the application holding that the petitioner-defendant availed of as much as 11 opportunities for concluding his evidence. The documents, which are sought to be produced being in existence prior to the filing of the suit and there is presumption of the same being in the knowledge of the petitioner-defendant, no case for grant of permission to lead additional evidence was made out, as the petitioner had failed to show due diligence on his part for not producing the documents, when his evidence was being led. It is against this order that the petitioner-defendant is before this Court.

(3.) Learned Counsel for the petitioner submitted that there may be some lapse on the part of the petitioner or his counsel in not leading the evidence at the appropriate stage, which is now sought to be led. In fact, specific plea has been raised by the petitioner in the written statement filed to the effect that in the earlier suit filed by one Gian Singh against the petitioner regarding the same property, the matter was compromised before this Court. In those proceedings, respondent No. 1-plaintiff, who is related to Gian Singh, had filed her affidavit admitting that the land belonged to Gian Singh, which is relevant for the purpose of decision of the lis between the parties. Further his plea regarding the petitioner-defendant being in possession of the property was found by Sub Divisional Officer (Civil), Kurukshetra during inspection of the site, which is also part of the judicial proceedings in the earlier suit between Gian Singh and the petitioner as Ex. P4. Referring to these two documents, which are sought to be produced, it was submitted that both the documents being part of the judicial record, there is no possibility of the same being tampered with or creation subsequently. However, the production thereof will clinch the issue in favour of the petitioner. Even if there is some lapse on the part of the petitioner or his counsel, that should not come in the way of doing substantial justice, as the law of procedure is subservient to justice. On that account, the other party can very well be compensated with costs. Reliance was placed upon Surinder Kumar v. Prem Lata, 1997 117 PunLR 291; Raju Sharma v. Pardeep Kumar, 1999 121 PunLR 612; Mam Raj v. Sabiri Devi,2000 119 PunLR 321 and Labh Kaur v. Ram Asra, 2000 125 PunLR 311.