LAL SINGH Vs. GURBAX SINGH AND OTHERS

JUDGEMENT

(1.) LAL Singh plaintiff instituted a suit in the Court of Subordinate Judge 2nd Class, Patiala for a decree for a permanent injunction restraining the defendants from closing a door, a dram and a parnala. The suit was contested by the defendants. They filed an application under section 10 of the Code of Civil Procedure stating that the plaintiff and his brother Chamba Singh had filed a similar suit in that Court against them and consequently that suit was liable to be stayed An issue was framed as to whether the suit was liable to he stayed under section 10 of the Code of Civil Procedure The said issue was treated as preliminary. The defendants led the evidence on the issue Thereafter, the plaintiff closed his evidence on March 12, 1979.

(2.) THE plaintiff then made an application for additional evidence on the ground that in the first suit namely Chamba Singh etc. v. Sher Singh etc. an application had been filed to delete his name on March 19, 1979 and the Court at the request of the plaintiff had deleted his name. It was further stated that the plaintiff was no longer a party in the earlier suit. The plaintiff, therefore, made an application to allow him to produce the amended plaint in the earlier suit. The application was declined by the learned Subordinate Judge vide order dated April, 21, 1979. The plaintiff has come up in revision against the said order to this court.

(3.) I have heard the learned counsel for the parties and find force in the contention of the learned counsel for the petitioner. It is inter alia provided in Rule 17 -A of Order 18 that where a party satisfied the court that after exercise of due diligence any evidence could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that at a later stage on such terms as might appear to it to he just. In the present case it is not disputed that the amendment in the earlier suit was allowed after the plaintiff had finished his evidence on the preliminary issue Consequently, the amended plaint could not be filed in the present suit on that date In my view, the petitioner is entitled to lead additional evidence on the preliminary issue. The learned trial Court has acted in the exercise of its jurisdiction with material illegality and, therefore its order is liable to be act aside.