Punjab-Haryana High Court
Jaskaur Singh vs Pritam Singh on 9 January, 1991
Equivalent citations: (1991)99PLR348
JUDGMENT Gokal Chand Mital, J.
1. The respondent (Plaintiff) filed a suit to preempt the sale mate in favour of the petitioner (defendant) on the ground of being a co-sharer with the vendor. The suit was contested by the petitioner on which certain issues were framed After the plaintiff led evidence the defendant started leading evidence. On one of the dates of hearing the evidence of the defendant was not present and the trial court adjourned the bearing for 16.8.1990 to enable the defendant to produce his remaining evidence on payment of conditional costs of Rs. 200/-. On 16.8.1990 the defendant neither paid costs nor led evidence and on the objection of the plaintiff the trial Court struck Off further defence of the defendant vide order passed on the same day.
2. Thereafter the defendant sought amendment of the written statement which was declined but that no longer is subject matter of controversy.
3. Then the defendant filed an application for review, of the order dated 16 8.1990: In the meantime, the Revenue Court is' alleged to have parsed an order of partition and preparation. of Nsksba-B on 1-10-1990 On the basis of this subsequent event the defendant filed an application under Order 18 Rule 17 of the Code of Civil Procedure (for short the Code') to seek permission to lead additional evidence for production of the order of partition and Naksha B.
4. The trial Court considered the review application and the application for additional evidence together and by a common order dated 25.10J990 dismissed both the applications. This is revision against the said order.
5. As regards the refusal to review the order dated 16 8.1990 is concerned I find no ground for interference for the reasons given, in para 8 of the order of Court below.
6. However, I am not in agreement with the trial Court in refusing permission to permit the defendant to lead additional evidence for production of the order of partition and Naksha B.
7. The provision of Section 35B was incorporated in the Code to control the delay. In case adjournment is granted to a party on payment of costs for doing some acts in furtherance of the case, on failing to do so, the Court is empowered to stop giving further opportunity to the delinquent party. That is why it was indicated by the Full Bench of this Court in Anand Parkash v. Bharat Bushan, 1981 P. L. J. 324. that once the delinquent party is disentitled to lead evidence it cannot be allowed to lead evidence in the garb of additional evidence. If lateron some evidence is allowed to be produced by way of additional evidence it would be negating the order closing the leading of further evidence. However, on the peculiar facts of this case that decision is clearly distinguishable.
8. In fact it is a case of bringing on record the supervening facts which have come in being during the pendency of the suit and after order dated 16 8 1990 closing the evidence was passed. On 16 8.1990 the order of partition and Naksha B could not be produced by the defendants as these were not in existence. Whatever material was available to the defendant and was relied upon by him in the list of reliance could be produced be him if he was granted opportunity. But once order dated 16.8 1990 is passed he stands precluded from leading evidence and placing material on record. But that does not mean that evidence which comes into being thereafter cannot be allowed to be placed on record. Court is bound to look into the supervening facts and subsequent events the moment they are brought to its notice provided they have bearing on the decision of the case.
9. Firstly, dealing with the fact whether the partition proceedings which concluded on 1.10, 1990 and Naksha B would have any bearing on the decision of the case or not. They would certainly have a bearing on the decision of the case. The suit for pre-emption is on the basis that the plaintiff is a co-sharer. The settled rule to succeed in suit for pre-emption is that the plaintiff must be a co-sharer on the date of sale, on the date of suit and should continue to be co sharer untill the decree of the trial Court. Therefore the alleged order of partition dated 1.10.1990 and Naksha B which have come into being on i.10.1990 by way of supervening facts as a subsequent event will have bearing on the decision of lithe suit. Therefore, it was the duty of the Court to take notice of the same and the defendant could not be precluded from placing the same on record merely because his farther evidence was struck off vide order dated 16 8.1990 Of course, it will be for the trial Court to see what is the effect of partition order and Naksha B after plaintiff is given opportunity to rebut the same.
10 For the reasons recorded above, the revision 5s allowed to the limited extent of directing the trial Court to permit the defendant to lead additional evidence to produce on record the order of partition dated 1.10,1990 and Naksha B. After the same are produced on record the trial Court will given an opportunity to the plaintiff to rebut the same and then proceed to decide the suit.
11. The parties through their counsel are directed to appear before the trial Court on 18.2.1990.