Punjab-Haryana High Court
Manohar Lal vs Vidya Wati And Others on 26 April, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR NO.6502 OF 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CR NO.6502 OF 2009 (O&M)
DATE OF DECISION: 26.04.2010
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Manohar Lal
. . . . Petitioner
VS.
Vidya Wati and others
. . . . Respondents
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CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: - Mr.B.S. Bhalla, Advocate for the petitioner.
Mr.S.K. Singla, Advocate for the respondents.
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RAKESH KUMAR JAIN J. (ORAL)
This revision petition is directed against an order dated 26.10.2009 passed by Additional Civil Judge (Sr. Divn.), Moga, whereby an application filed by the plaintiff for leading additional evidence has been dismissed.
Learned counsel for the petitioner has submitted that after the remand from the Appellate Court, the defendants were permitted to examine four witnesses, namely, Surinder Kumar, Ram Parkash, Jagmail Singh and Dharamvir Singh. It is submitted that despite these four named witnesses, defendants have examined another witness, namely, Amarjit Aggarwal. It is submitted that since the defendants have been allowed to examine another witness, therefore, they may also CR NO.6502 OF 2009 (O&M) -2- be allowed to examine Civil Engineer, building expert, Photographer and also to produce on record MAP by way of additional evidence. It is submitted that the entire evidence would be led in one day only.
On the other hand, learned counsel for the respondents has drawn the attention of this Court to an order passed in Civil Revision No.3646 of 2007, which was disposed of on 10.3.2009, which reads as under:
Challenge in the present petition filed under Article 227 of the Constitution of India is to the order dated 16.7.2007 passed by the learned court below whereby the respondent/plaintiff was permitted to lead evidence in rebuttal. Challenge was made on the ground that the plaintiff cannot be permitted to led evidence in rebuttal on the issue, the onus to prove of which is on the plaintiff.
Learned counsel for the parties are agreed that the legal issue involved in the petition was referred to and considered by a Division Bench of this court in Civil Revision No. 1213 of 2005 Surjit Singh and others vs Jagtar Singh and others which now stands decided vide judgment reported as 2007 (1) RCR (Civil) 537. He further submitted that after the answer to the question of law referred to the Division Bench, the impugned order passed therein was set aside and the matter was remitted back to the learned court below to be decided in terms of the aforesaid judgment in Surjit Singh's case (supra).
As authoritative enunciation of law laid down by a Division Bench of this court in Surjit Singh's case CR NO.6502 OF 2009 (O&M) -3- (supra) has not been considered by the learned court below, both the learned counsel are agreed that the impugned order may be set aside and the matter be remitted back to the learned court below to be dealt with in accordance with the law laid down in the aforesaid case.
Accordingly, the impugned order dated 16.7.2007 passed by the learned court below is set aside and the matter is remitted back to be considered in accordance with law.
The petition stands disposed of in the above terms."
It is submitted that what the petitioner could not do directly is being sought to be done indirectly because the said witnesses is sought to be examined in the rebuttal, who was not earlier allowed by this Court. It is further submitted that if the petitioner is aggrieved against the examination of Amarjit Aggarwal, as an additional evidence, he has his own remedy under the law but he cannot be allowed to seek a barter in the sense that if Amarjit Aggarwal has been allowed to be examined then he should also be allowed this witness, who has been specifically declined by the order dated 16.7.2007. Thus, I do not find any force in the arguments raised by learned counsel for the respondents and find merit in the order of learned trial Court as the petitioner cannot be allowed to lead additional evidence by way of examination of the aforesaid witnesses, namely, Civil Engineer, Photographer and Building Expert as they have been earlier specifically declined to be examined.
In view of the above, the present revision petition lacks merit and as such the same is hereby dismissed.
CR NO.6502 OF 2009 (O&M) -4-
(RAKESH KUMAR JAIN) 26.04.2010 JUDGE Vivek