KALI RAM Vs. KAPTAN SINGH

JUDGEMENT

(1.) A suit for specific performance has been filed for enforcement of an agreement to sell, alleged to have been executed by the plaintiffs father -in -law. The defendant has denied the agreement to sell. The plaintiff filed only photo copy of the agreement and after his side was closed and the defendant had examined the witnesses, when the case was posted for rebuttal and arguments, at that time the plaintiff moved an application for producing the original agreement, inter -alia, stating that the original had been misplaced and has been found now. He has also sought for permission of examination of the witnesses to the agreement. The court has observed that if the original was said to be missing previously and if a fresh opportunity was sought, at least at that time it should have referred as to how the document was re -traced. The court has also observed that earlier he had filed an application for comparison of thumb impression and for getting a report of the thumb impression expert and when his application was dismissed, he has moved the present application for filling the original document and examination of the witnesses. When the plaintiff filed the case and when he went on trial, he knew that the agreement was being denied and most crucial issue was whether there existed an agreement of sale or not. Even if the original was not available at the time when the suit was instituted and he had made a ground for secondary evidence, it should have been possible for the plaintiff to examine witnesses who spoke about the document. If he chose not to give any evidence through the witnesses of the document about the genuineness of the agreement while leading his evidence, unless he explains as to why he could not examine the witnesses earlier, he could be allowed an opportunity to produce all those witnesses and seek yet another opportunity to prove the document after defendant's side is closed. The court found that the ploy was adopted by the plaintiff only to prolong the proceedings. Counsel has referred me to a decision of this Court in Ram Niwas Versus Kalu Ram and another : 2012 (3) LH (P&H) 2065 where the court was considering an issue of producing an additional evidence at the appellate stage. I cannot see any relevance of the judgment for a case that has to be examined whether the plaintiff had any justification for not producing the original at the appropriate stage and when he sought to produce the original, he gave no reason at all as to why original was not produced and when it was discovered. He has also not given any reason as to why witnesses connected to the documents were not examined earlier and how a new occasion has arisen for examination of such witnesses. The discretion exercised by the court below was appropriate and I find no reason to interfere with the same.

(2.) THE revision is dismissed.