1. This petition under Article 227 of the Constitution of India challenges the order dated 6th November 2004 passed by Mr. Sanjay Bansal, Civil Judge, Delhi by which the application filed by the plaintiff for sending further rebuttal evidence was dismissed. The application for leading further evidence and the application moved by the plaintiff itself showed that both the plaintiff and defendant had already led their evidence and the matter was fixed for final arguments in the trial court on 26th March 2004 and 27th July 2004 The application was moved at the final arguments stage before the learned single Judge. The two main grounds for seeking to lead further evidence by the plaintiff were:
a) at the time when the plaintiff was leading his part of evidence some witnesses could not be examined by the counsel for the plaintiff and as such the evidence was closed;
b) during the cross examination of Shri Vipon Vinod who happens to be the defendant No. 1, as a witness, the witness altogether denied the existence of plaintiff Along with his other member of the family in the premises of the suit property which is a false statement and accordingly had to be met by leading additional evidence.
2. The plaintiff's counsel Ms. Anand has thus submitted that it is, therefore, necessary to bring on record whether the plaintiff Along with his brother was staying in the suit premises and the official record of the school where the plaintiff and his brother were studying was sought to be brought on record by the dismissed application for leading additional evidence. The school records mentioned that the plaintiff and his brother were resident of 253-254,Double Storey, New Rajinder Nagar, New Delhi.
3. As far as the plea (a) mentioned above is concerned, this is a wholly unsustainable and meritless plea and a mere assertion that some witness could not be examined cannot be a ground to grant the plaintiff to lead the evidence at the stage of final arguments. Accordingly this plea is rejected.
4. Plea (b) is based on the premise that during cross-examination, defendant No. 1 appearing as a witness denied the existence of the members of the petitioner's family in the suit property, which led to the application for additional evidence for bringing the school records. This plea also does not appear to be have any merit as rightly pointed out by the learned counsel for the respondent, the original defendant No. 1, that this plea of the absence of the plaintiff and his family was taken up in the written statement itself and thus the plaintiff's plea that he was taken by surprise by the affirmation by the testimony of defendant No. 1 of the contents of his written statement is totally wrong. He has pointed out that this application is merely a ruse of delay the proceedings in the suit which was listed for final arguments. In my view, there is no merit whatsoever in this plea of the plaintiff also because since the defendant has already pleaded in the written statement that the plaintiff and the other members of his family were not residing in the suit property and then the plaintiff was aware of this assertion and ought to have led evidence at the appropriate stage to rebut such a plea. This cannot be a ground to permit leading of additional evidence at the stage of final arguments. The trial court while dismissing the application also noted that for the same purpose on two earlier occasions the applications were filed by the plaintiff and had been dismissed and in fact against one of the orders the plaintiff came up in the revision to this Court and the petition filed in this Court was eventually dismissed as being not pressed.
5. In my view the trial court has rightly dismissed the application filed by the plaintiff petitioner as it does appear that the plaintiff is over eager to go on with the suit and the third application filed for the same purpose does not appear to be bona fide.
6. Learned counsel for the petitioner has stated that the procedure in the hand-maiden of justice and one more opportunity should have been given. Reliance has been placed on a judgment of the Hon'ble Supreme Court in Divyash Pandit v. Management NCCBM reported as (2005) 2 SCC 684 where in para 8 of the judgment it is held as under:
8. The appellant has challenged this decision of the High Court before us. We are of the view that the order of the High Court dated 2-12-2002, as clarified on 3-3-2003 does not need any interference. It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in the written statement but, as held by this Court in Karnataka SRTC v. Laxmidevamma (2001) 5 SCC 433 this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was given one opportunity to the respondent to establish the charges before passing an award in favor of the workman.
7. The position of law laid down by the Hon'ble Supreme Court is very clear and shows that there is no fetter on the power of the trial court to grant permission to the parties to lead additional evidence at any stage of proceedings before they are concluded. However, the mere existence of the power to permit additional evidence does not ipso facto give any right to any party to the proceeding to assert such a right at a belated stage of final arguments. The learned Civil Judge has given cogent reasons for rejecting such a plea which reasons are eminently justified and indeed deserve to be and are affirmed by this Court. Accordingly, this writ petition under Article 227 of the Constitution being wholly without merit is dismissed. The parties are directed to appear before the trial court on 18th May 2005. The registry is directed to send back the trial court record forthwith.
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