Chhajju Singh v. Gulab Singh

CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Ashok Goel, Advocate for the petitioner. **** Vijender Singh Malik, J. CM No.25732-CII of 2011 Application for exemption from filing certified copies of Annexures P-1 and P-2 is allowed. Annexures P-1 and P-2 are taken on record. CR No.6552 of 2011 Chhajju Singh, plaintiff has brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 05.10.2011 passed by learned Additional Civil Judge (Senior Division), Tohana whereby his application for additional evidence has been dismissed. In a suit for recovery of Rs.57,000/- with interest, the petitioner claimed that he could not examine an expert and a process server out of inadvertence. According to him, they are relevant and necessary witnesses to be examined for just and proper decision of the case. Civil Revision No. 6552 of 2011 --2-- The application was opposed by the defendant, who had claimed that after availing several opportunities to complete his evidence, the plaintiff closed his evidence on 29.03.2010 and now he wants to fill up lacuna, which has been left in his case and he cannot be permitted to do so.

Hearing learned counsel for the parties, learned trial court has dismissed the application vide the impugned order. Aggrieved by the aforesaid order, the petitioner has brought this revision petition. I have heard Shri Ashok Goel, learned counsel for the petitioner and have gone through the record carefully. Learned counsel for the petitioner has submitted that it is a hard case. According to him, though the petitioner failed to lead this evidence while he was leading his evidence in the affirmative, this evidence would not take the defendant by surprise and would not cause any prejudice to him. He has also submitted that for non-examination of expert and the process server, the trial court has dismissed similar case and for that reason, he should be permitted to examine the expert and process server. Elaborating himself on the query of the court, learned counsel for the petitioner has submitted that the process server has to be examined to prove the signatures of the defendant on the notice issued to him of the suit.

According to him, the handwriting expert would then be required to be examined to prove the signatures of the defendant on the pronote and receipt. Civil Revision No. 6552 of 2011 --3-- The notice and the report of the process server thereon are there on the file even prior to the appearance of the defendant in the suit. The defendant filed written statement denying his executing the pronote and receipt in favour of the plaintiff. In this situation, the plaintiff should have been able to visualize whatever evidence would be required to be produced to prove his case. After taking his due time, he had closed his evidence. It is not the case that the plaintiff came to know of this evidence or he could not lead this evidence at the time he was leading his evidence despite the exercise of due diligence. The prayer made in the application is clearly shown to amount to filling up of lacuna left in the case, which cannot be permitted.