Nanda vs Kamlesh and Others

Jaswant Singh, J.—In the instant revision petition under Article 227 of the Constitution, Defendant No. 2-Petitioner Nanda has prayed for setting aside the impugned order dated 31.10.2009 (P.2) whereby his evidence has been closed ; as well as order dated 18.11.2009 (P.3) passed by the learned trial Court dismissing the application of the Petitioner for leading additional evidence.

Plaintiff-Respondent Nos.1 to 4 filed a civil suit No. 206 dated 22.1.2004 for declaration to the effect that they are owners in possession of the suit land as described in the head note of the plaint to the extent of 1/32 equal shares and the sale deed executed on 31.8.1999 and registered on 7.9.1999 is null and void, inoperative without authority and not binding upon the rights of the Plaintiffs-Respondents; with a further consequential relief of permanent injunction restraining the Defendants from interfering into the peaceful possession of the Plaintiffs over the suit land on the basis of said registered sale deed. When the case was fixed for evidence of the Defendants, the learned trial Court vide order dated 31.10.2009 closed the evidence of Defendant No. 2 by its order and the case was adjourned to 9.11.2009 for rebuttal evidence, if any and arguments. Thereafter, Defendant No. 2-Petitioner filed an application for leading additional evidence for examination of four witnesses besides praying for setting aside the order dated 31.10.2009. Notice of the application was issued to the opposite side but no reply was filed. After hearing both the sides, learned trial Court dismissed the application on the ground that the same has been filed just to prolong the case. Hence the present petition.

Heard learned Counsel for the parties and perused the paper book.

Learned Counsel submits that Bishambar Singh etc executed a General Power of Attorney in favour of the Petitioner and the same was registered before the Sub Registrar, Gannaur on 11.3.1996 and on the basis of that, the sale deed dated 7.9.1999 was registered in favour of Defendant No. 1-Respondent No. 5 but now Plaintiff-Respondent No. 2 i.e Parveen son of Bishambar has instituted a criminal complaint against the Petitioner u/s 420 IPC etc.

Therefore, the witnesses sought to be produced by way of additional evidence are very material for the proper adjudication of the matter in controversy and in case they are not allowed to be examined and the impugned orders dated 31.10.2009 and 18.11.2009 are not set aside, the Defendant-Petitioner shall suffer an irreparable loss and a great prejudice will be caused to him.

It transpires that at the relevant time in the year 1996, the Petitioner was a Sarpanch of village Budanpur, District Panipat and a dispute arose between Defendant No. 1-proforma Respondent No. 5 herein and Bishambar Singh (husband of Plaintiff/Respondent No. 1 and father of Plaintiff-Respondent Nos.2 to 4) and others. It further transpires that a compromise dated 1.3.1996 (P.1) took place between the parties and thereafter on 11.3.1996, the Petitioner was appointed as power of attorney of said Bishambar Singh etc on the basis of which sale deed dated 7.9.1999 was executed in favour of Defendant No. 1-Respondent No. 5 before the Sub Registrar, Gannaur District Sonepat. It is alleged that original copy of the said compromise dated 1.3.1996 was handed over to Respondent No. 5 and photo copy of the same was retained by Defendant No. 2-Petitioner and the Plaintiffs-Respondent Nos.1 to 4.

It is necessary to mention here that while issuing notice of motion, this Court had stayed the passing of final judgment vide order dated 24.12.2009.

From the perusal of paragraph 5 of the impugned order dated 18.11.2009, it is amply clear that both the Defendants i.e Petitioner as well as proforma Respondent No. 5 had filed a joint written statement through their counsel Sh. I.S. Ghanghas, Advocate and after framing of the issues, the witnesses of Plaintiff-Respondents were cross examined by said Sh. Ghanghas on behalf of both the Defendants. It is necessary to mention here that the present Petitioner had already appeared as PW7 in this case and his statement was recorded on 30.10.2009. Thereafter, the evidence of Defendants was recorded and two witnesses i.e DW1 and DW2 were examined on 31.10.2009 and counsel for the Defendants closed the evidence of Defendant No. 1. No other DW was present on 31.10.2009, therefore, the evidence of the Defendant No. 2 was closed by court order on 31.10.2009 (P.2).

No doubt, from the perusal of the order dated 31.10.2009, it is clear that it was the first opportunity for the Defendants on 31.10.2009 to lead their evidence and the Petitioner has already appeared as PW7 whose statement was recorded on 30.10.2009 giving full opportunity to produce the alleged compromise and general power of attorney referred above but he had no occasion or opportunity to produce his four witnesses, namely, Jai Bhagwan, Bhim Singh, Raj Kumar and Nirbhay Singh while appearing as PW7. The said witnesses, who are sought to be examined by way of additional evidence and who had allegedly witnessed the compromise dated 1.3.1996 (P.1) are necessary and material witnesses but the Defendant No. 2/Petitioner was having the full opportunity to produce the witnesses at the relevant time. There is no averment that the Petitioner had raised such pleadings in his written statement or in his application for additional evidence the factum of criminal complaint is sought to be raised It is necessary to mention here that neither application for additional evidence nor written statement filed by the Defendants is placed on record for the reasons best known to him. At this stage, when the case had already been fixed for rebuttal and arguments for 31.10.2009 if the witnesses, who are sought to be produced by way of additional evidence, are allowed that will amount to re-opening the trial and de novo proceedings will be started and there will be no end to the litigation. It is amply clear that the Petitioner has not shown any diligence much less to say due diligence while defending his case at the relevant time.

Keeping in view the facts of the present case, in my opinion, the learned trial Court has rightly passed the impugned order while closing the evidence of Defendant No. 2.

In view of the above, no perversity or illegality can be found in the impugned order dated 31.10.2009 (P.2) and order dated 18.11.2009 (P.3) passed by the learned trial Court warranting interference under Article 227 of the Constitution.