AMRIK SINGH Vs. JODH SINGH

JUDGEMENT

(1.) This revision is directed against the order dated 22.9.1997' of the trial court allowing the application of plaintiff-respondent for additional evidence.

(2.) Jodh Singh plaintiff-respondent filed a suit for specific performance of agreement to sell dated 6.1.1984, executed by defendant No. 1 regarding land measuring 37 Kanals 12 Marias fully detailed in the head note of the plaint. The suit was filed in May, 1994 and the plaintiff thereafter concluded his evidence. Shortly after the conclusion of evidence and before the defendants started leading evidence, the plaintiff moved an application under Order 18 Rule 17-A of the Code of Civil Procedure for production of additional evidence. It was averred by the plaintiff that the agreement produced on the record could not be exhibited inadvertently which had been proved by Kalga Singh as well as Charan Singh Deed Writer but the same was not exhibited. The plaintiff also produced an affidavit which is already on the record and inadvertently this document also was not exhibited in the evidence although the same had been proved by the witnesses. It was in this situation plaintiff prayed that agreement to sell and affidavit be exhibited and be read in evidence. This application was opposed by the defendants by filing reply. The trial court, as already noticed, allowed the application by observing that the documents proposed to be proved, have been partly proved by the witnesses examined by the plaintiff. It also recorded that the case of the plaintiff rests on the agreement to sell and there is no ground to disallow the application.

(3.) After hearing learned counsel for the parties and on a consideration of the matter, I am of the opinion that the trial court acted illegally and with material irregularity in allowing the application for additional evidence. The plaintiff while moving application for additional evidence did not mention any evidence which was sought to be produced by way of additional evidence. In fact according to the plaintiff himself, the witnesses required to prove the documents i.e. the agreement to sell and the affidavit have already been examined. From a reading of the affidavit, it is further clear that according to the plaintiff, the documents have already been proved but the same were not exhibited. Once that is so, the question of permitting the plaintiff to produce additional evidence to prove these documents did not arise. If the documents have already been proved and these have not been exhibited due to inadvertence, it is always open to the plaintiff to show during the course of arguments that the documents which remained un-exhibited, have to be exhibited. It is also not understood as to what the trial court meant by saying that the documents have been "partly proved". As already noticed, the plaintiff did not indicate the evidence sought to be produced by way of additional evidence in the application nor it is noticed in the order allowing the application. Even during the course of arguments in this Court, learned counsel for the plaintiff-respondent could not specify as to what evidence is sought to be produced by way of additional evidence. Learned counsel only submitted that the order passed by the trial court is only discretionary order and no interference therewith is called for. This contention of the learned counsel, in my opinion, has no merit. The parties to the litigation seeking to produce additional evidence are at least required to show as to what evidence is sought to be produced by way of additional evidence and such evidence has a bearing on the point involved in the suit and is relevant for that purpose. In the present case, nothing of the sort of shown. In that view of the matter, I am of the opinion that the trial court acted illegally and with material irregularity in allowing the application for additional evidence. The revision petition is, therefore, allowed and the impugned order is set aside. It will, however, be open to the plaintiff-respondent to show that the documents which have not been exhibited, have been duly proved and deserve to be exhibited on the basis of evidence already led on the record.