Dalbir Singh vs Swaran Singh

Rakesh Kumar Jain, J.—This petition is against the order dated 12.12.2012 by which application of the plaintiff for producing additional evidence has been declined.

Learned counsel for the petitioner/plaintiff has submitted that in the additional evidence, he wanted to produce the registered Will, which is the very basis of the suit. He has referred to the decision of this Court in the case of "Pawan Kumar Vs. Raj Kumar and others" 2007(1) RCR (Civil) 385, to contend that the Court still has inherent power to allow additional evidence in case it is necessary for the just and proper adjudication of the case.

On the other hand, learned counsel for the respondents has submitted that there is no error in the order passed by the Court below because before closing the evidence of the plaintiff, 23 opportunities were granted to him besides last opportunity and opportunity on payment of cost. The evidence was closed on 1.6.2012, which was not challenged by him and now an application has been filed to lead additional evidence.

I have heard both the learned counsel for the parties and examined the record.

There is no dispute about the judgment of this Court in the case of Pawan Kumar (Supra) but every case has to be decided on its own facts. In the present case, the plaintiff wanted to prove the registered Will by way of additional evidence. It is admitted by learned counsel for the petitioner/plaintiff before me that his entire case depends upon proving the registered Will, which is the very basis of the suit. If that is so, this would have been the first document to be produced on record by him and proved in accordance with Section 65 of the Indian Evidence Act, 1872 by at least examining one attesting witness thereof. However, despite taking 23 opportunities, including last opportunity and opportunity on payment of cost, the plaintiff did not lead the said evidence and when the evidence was closed by order of the Court, the said order even was not challenged before this Court by way of revision as he was satisfied with the closure of the evidence. If he was so keen to lead his evidence for producing the registered Will, he would have definitely challenged the order dated 1.6.2012 by way of revision before this Court. The plaintiff/petitioner, in the name of justice, cannot take advantage of his own negligence as additional evidence is always to be allowed when after exercising due diligence, the document sought to be produced was not within the knowledge or has come in existence after closure of evidence by order.

In view thereof, I do not find any merit in the present revision petition and hence, the same is hereby dismissed.