SATINDER SINGH Vs. SUKHDEV

JUDGEMENT

(1.) The above revision has been filed by the defendant against the order dated 7-4-1997 passed by the learned Senior Subordinate Judge, Solan, in case No. 497/1 of 1990, whereunder the Court below has chosen to reject an application filed by the defendant-petitioner under Order 18, Rule 17 read with Section 151 of the Code of Civil Procedure, for recalling the plaintiff, who was examined as P.W. 4, for being further cross-examined.

(2.) The petitioner in his application before the Court below has stated that in the suit filed by the respondent-plaintiff for declaration and permanent injunction to the effect that he is the owner in possession of the land, the defendant-petitioner filed a written statement refuting the allegations levelled in the plaint and asserted that the defendant is the owner in possession and revenue entries made in this regard are correct. In the course of the trial of the suit, the plaintiff was said to have been examined as P.W. 4 and he seems to have claimed in the box that he is the owner in possession of the disputed land and planted fruit trees and not the defendant. The further claim of the petitioner in the application filed is that it is the defendant who is in possession of the land and the plaintiff has worked as labourer with the defendant and he has issued two receipts on 24-2-1987 in connection with the charges for the work done by him and others in the land of the defendant and those receipts, which were said to have been misplaced and could not be brought to the notice of the plaintiff when he was examined as P.W. 4 and therefore, it has become relevant and necessary to have the same put to the plaintiff and for that purpose he has sought for the recalling of the witness P.W. 4.

(3.) The said application was opposed by the respondent-plaintiff by contending in the reply filed that the defendant who had full knowledge of the case pleaded by the parties has not chosen to confront P.W. 4 by producing the document now sought to be produced and therefore it is not open to the defendant to fill up the lacuna in the evidence and if the plaintiff is made to appear in the box again to face the defendant, it is likely to put the plaintiff into sufferance and the defendant, who was guilty of negligence cannot be allowed to overcome the same by filing the application in question and, therefore, it deserves to be dismissed. It is also contended in the said reply that the documents were not relied upon earlier when the issues were framed and the theory of alleged misplacement of document is not to be believed and consequently the plaintiff prayed for the dismissal of the application.