Desh Raj vs Bhagwat Dayal and Others

Paramjeet Singh, J.—Instant revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 18.02.2012 (Annexure P-3) passed by the learned Additional Civil Judge (Sr. Divn.), Gurgaon whereby application moved by the petitioner-plaintiff for leading additional evidence, has been dismissed. Briefly stated, the facts for disposal of the instant revision are that the petitioner filed a suit for possession by way of specific performance of the agreement to sell in respect of the land measuring 08 kanals 3 marlas. Despite the execution of agreement to sell by respondent no. 1 to 3 in favour of petitioner, they sold the land measuring 4 kanals to respondents no. 4 and 5, out of total land, vide registered sale deed dated 20.04.2005 and mutation has also been sanctioned in favour of respondents no. 4 and 5. It is further averred that the petitioner in spite of due diligence and inadvertence could not produce documentary evidence pertaining to the execution of sale deeds by him and the entries of the same in the revenue records in the form of mutations bearing No. 12376, 12377 dated 3.8.2004, 12518 dated 2.9.2004, 12919 dated 4.1.2005, 12934 dated 7.2.2005, 12935 dated 7.2.2005, 12936 dated 7.2.2005, 13001 dated 7.2.2005, 13169 dated 4.4.2005, 13231 dated 20.04.2005, 15017 dated 18.08.2006, 15123 dated 13.09.2006, 16505, 16518 dated 23.11.2007, 16613 dated 2.1.2008, 17521 dated 6.2.2009. It is further averred that this evidence is necessary for proper and efficacious adjudication of suit and goes to buttress the stand of petitioner to prove his capacity to honour the balance sale consideration required to be paid to respondents no. 1 to 3 by him at the time of execution of the sale deed. The petitioner-plaintiff moved an application for producing the above mentioned mutations which was dismissed vide impugned order dated 18.02.2012 (Annexure P-3). Hence, this revision.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner contended that the documentary evidence sought to be tendered in the case would prove the capacity of the petitioner to honour the balance sale consideration required to be paid to respondents no. 1 to 3 by him at the time of execution of the sale deed. The learned counsel further contended that proving of above mentioned mutations is necessary for proper adjudication of the case and now the petitioner may be permitted to produce the same in additional evidence.

Per contra, learned counsel for respondents no. 3 to 5 contended that the petitioner has failed to bring on record the said documents at the time of leading his evidence and now the trial is at fag end. The respondents are unnecessarily being harassed on account of delay caused by the petitioner. There is no illegality or perversity in the impugned order passed by the trial Court.

I have considered the rival contentions of learned counsel for the parties.

It may be noted here that in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , it has been held by the Hon''ble Supreme Court that notwithstanding the deletion of Order 18 Rule 17-A of CPC, the Court has inherent powers to permit parties to lead additional evidence on such terms as may appear to be just. In the present case, this Court is of the considered opinion that ends of justice would be met if one effective opportunity is given to the petitioner-plaintiff to produce and prove the above mentioned mutations, being public documents, in additional evidence, subject to costs of Rs. 10,000/- to be paid to respondents no. 3 to 5. However, the respondents shall also be given an effective opportunity to rebut the evidence produced by the petitioner-plaintiff in additional evidence. For the reasons stated above, the impugned order dated 18.02.2012 (Annexure P-3) is set aside. The revision petition is allowed in the aforementioned terms.