Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5645 of 2004 (O&M) Date of decision:
02. 09.2013 Malkiat Singh son of Bagher Singh, son of Narain Singh, resident of Dhaddian Da Agwar, near Government High School, Bhadaur, Tehsil Barnala, District Sangrur. ...Petitioner. Versus Sadhu Singh son of Gurmukh Singh son of Ram Singh, resident of Jaid Agwar, Bhadaur, Tehsil Barnala, District Sangrur. ....Respondent CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Hem Raj Kapil, Advocate, for the petitioner. Mr. S.K. Singla, Advocate, for the respondent. ---- K.Kannan, J.(Oral) 1. The revision is against an order seeking for permission to file additional evidence and allow the defendant and some of his witnesses to be recalled for further evidence. The prayer was rejected and the revision is against the dismissal of the application for recall and re-examination of the defendant and his witnesses.
2. There were two orders passed on two different applications and a single civil revision is filed. Procedurally improper as it is, I do not still want to be detained on this issue, since the case has remained pending and the suit is still not disposed Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -2- of for nearly 9 years. I, therefore, would consider the tenability of the petitioner's claim in both the applications, discarding any scope for technical objection being taken.
3. The suit is for specific performance and the petitioner is the defendant contesting the suit filed by the plaintiff-respondent. He has contended that the agreement propounded by the plaintiff said to have been executed by the defendant on 31.12.1996 is not true and that he had not received any consideration, as stated in the document. On the other hand, according to him, he had executed only an agreement of sale in favour of the plaintiff's son and had received ` 1.50 lakhs, but the plaintiff's son did not perform his part of the contract. The plaintiff's son had gone abroad and the plaintiff had by fraud and coercion secured signatures of the defendant in blank stamp papers and has filed a suit on false and fabricated documents. The plaintiff had given his evidence and closed his side. The defendant filed an application for reception of secondary evidence of the agreement of sale said to have been executed by him in favour of the plaintiff's son. Since he did not have the original agreement and, under the normal circumstances, if the document were to be true, the document could have been only in the hands of the plaintiff's son, he sought to contend that the secondary evidence should be permitted to be led. The Court had passed an order dated 14.02.2002 to the extent of allowing the document subject to proof Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -3- of its existence and loss, the justifying circumstances set out under Section 65 of the Evidence Act.
4. When it was the defendant's turn to give his evidence instead of giving evidence in chief through affidavit in respect of all matters contained in the written statement as well as the issue regarding the genuineness and the alleged loss of the agreement of sale said to have been executed by him in favour of the plaintiff, the defendant gave a proof affidavit only as regards the agreement of sale alleged to have been executed in favour of the plaintiff's son. All other witnesses were also examined and cross-examined. After the conclusion of all the witnesses, who were 9 in number, the petitioner-defendant filed an application under Order 18 Rule 17-A CPC for recall and re-examination of himself and some of other witnesses who, according to him, had been not fully examined with reference to the contentions raised in the written statement. He came up with a plea that he was under an impression that he was required to let in evidence only with reference to the proof of the existence and loss of agreement of sale in favour of the plaintiff's son and, therefore, he did not let in evidence with reference to all other facts stated in defendant to the plaintiff's suit. This application was dismissed by the Court on 27.07.2004 and subsequently, yet another petition was filed on 08.09.2004, this time under Order 18 Rule 17 reiterating the contentions raised already in the earlier application Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -4- and seeking for permission to examine other witnesses in respect of the defence taken in the written statement. This application was also dismissed. The revision petition has been filed against both the issues.
5. I find the contentions raised by the petitioner to be untenable that a party who was given permission to adduce secondary evidence subject to genuineness of the existence of the document and the loss was to be taken as being afforded an opportunity of preliminary evidence and after the cross-examination of the witnesses were all over, he could again get an opportunity with reference to his defence with reference to the contentions raised in the written statement. However, it turned out to be so and for a person, who was defending the suit denying the plaintiff's agreement could not have been left without giving the affidavit regarding the agreement propounded against him where the consideration of `4,80,000/- was said to have been received by the defendant. I have seen through the affidavit filed immediately after the Court passed an order giving the opportunity to the defendant to let in secondary evidence with reference to the alleged document in favour of the plaintiff's son. The defendant has given a cryptic evidence through proof affidavit making reference only to the document alleged to have been executed in favour of the plaintiff's son on 02.08.1997 and had not made any mention to the alleged document dated Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -5- 31.12.1996 or the extensive contentions raised by him regarding the threat and coercion and further incident relating to some action by means of writ petition before the High Court. I believe that the defendant had allowed himself to be wholly misled and I will not see this to be the result of any deliberate action giving up his defence but only on account of ignorance. However, the defendant cannot impute the plaintiff with any design allowing for such a wrong assumption. The parties are invariably guided in the matter of preparation of affidavits by the advice of counsel and I see this to be result of very poor legal assistance for the first defendant before the trial Court.
6. The counsel for the respondent has a genuine grievance that his own side was concluded some time in the year 2000 and for the last decade and more, the case is lingering on only on account of the conduct of the defendant in not producing all the evidence which he was required to produce when it was his own turn to adduce evidence. The defendant has really nothing to lose, for, even as per his own document, he had received ` 1,60,000/- from the plaintiff's son. The plaintiff has still something to lose, for, according to him, he has already parted with `4,80,000/- to the plaintiff in the document of agreement and the plaintiff has not had the benefit of sale for this length of time. If the defendant must be given any opportunity to let in further evidence, having literally missed the Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -6- bus, as it were, he shall be tested in his bona fides and I would allow this opportunity to be brought, if only, he deposits in Court an amount of `2.40 lakhs to the credit of the suit, half the amount of sale consideration recited as received by the defendant under the document. Even if the defendant's contention is that he did not receive the amount, the defendant has had the benefit of receipt of ` 1,60,000/- from the year 1997 till date and the direction which I give is just a little over for the said sum, admittedly received by the defendant. This is the only method by which I can make the defendant's indiscretion pay and for the delay in disposal of the suit that he has caused, he must be made to bear this liability in order that he is given an opportunity to let in additional evidence. The amount, which I have directed through this Court, shall be done within 4 weeks from the date of receipt of copy of the order, failing which, the opportunity that is provided through this order, shall be taken as withdrawn.
7. The impugned orders are set aside and the civil revision is allowed on the above terms. The trial Court shall endeavour to conclude the trial as expeditiously as possible and will give just one opportunity for the defendant and his witnesses to be brought on dates which it can specify in advance and if need be, allow for sufficient time for securing the attendance of all the witnesses by summons, if the witnesses may not be willing to come without Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh Civil Revision No.5645 of 2004 (O&M) -7- summons. The permission that may be granted on a specific date will be conditional on the deposit of the amount as referred to above and if the amount is not deposited, the side may be treated as closed and the Court may proceed with the case for arguments. Since the defendant has been granted the opportunity of producing secondary evidence with reference to the document alleged to have been executed in favour of the plaintiff's son, the plaintiff shall have a right of rebuttal only with reference to the secondary evidence which the defendant has brought and the additional evidence which is not permitted to be given to the defendant shall not be taken as an opportunity given to the plaintiff to let in rebuttal evidence on all issues. It shall be confined only to the issues the burden of proof of which is on the defendant and in respect of matters where the burden of proof was only with the plaintiff, the plaintiff shall have no further scope for offering rebuttal evidence. The revision petition is allowed. Having regarding to the discretion exercised in favour of the defendant/petitioner, in the interest of justice, the petitioner shall also bear the cost of revision to the respondents which I assess at ` 10,000/-.
8. The civil revision is disposed of on the above terms. (K.KANNAN) JUDGE 02 09.2013 sanjeev Kumar Sanjeev 2013.09.05 16:41 I attest to the accuracy and integrity of this document chandigarh