Punjab-Haryana High Court
Anil Kumar vs Deepak Bjaj on 4 July, 2024
Author: Alka Sarin
Bench: Alka Sarin
234
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-7868-2017 (O&M)
Date of Decision : 04.07.2024
Anil Kumar ... Petitioner(s)
Versus
Deepak Bajaj ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Akshay Kumar Jindal, Advocate for the petitioner.
Mr. Ankur Lal, Advocate for the respondent.
ALKA SARIN, J. (Oral)
1. The present revision petition has been filed challenging the
order dated 02.11.2017 (Annexure P-10), whereby the application filed by
the plaintiff-respondent for leading additional evidence has been allowed.
2. The facts tersely stated are that the plaintiff-respondent herein
filed a suit for possession by way of specific performance of a contract
alongwith consequential relief of permanent injunction. The suit was
contested by the defendant-petitioner and on the basis of the pleadings,
issues were framed. Issue No.1 as framed by the Trial Court reads "Whether
plaintiff is entitled to a decree for possession by way of specific performance
of the agreement to sell dated 3.7.2012 ? OPP". The plaintiff-respondent
concluded his evidence and thereafter the evidence of the defendant-
integrity of this order/judgment.
CR-7868-2017 (O&M) -2-
petitioner was also concluded. At the stage of rebuttal, a second application
for appointment of a Local Commissioner was filed which was allowed by
the Trial Court vide order dated 20.03.2017. Aggrieved by the same, the
present defendant-petitioner had approached this Court by filing
CR-2515-2017 which was allowed by this Court vide order dated
24.07.2017 (Annexure P-7). Subsequently, after dismissal of the said
application for appointment of the Local Commissioner for ascertaining the
nature of the suit property, the plaintiff-respondent filed an application for
additional evidence. By way of the additional evidence, the plaintiff-
respondent sought to produce some photographs, bill and original memory
card for showing the possession of the plaintiff-respondent over the suit
property. The said application was allowed by the Trial Court vide the
impugned order dated 02.11.2017. Aggrieved by the same, the defendant-
petitioner has filed the present revision petition.
3. Learned counsel of the defendant-petitioner would contend that
the plaintiff-respondent had filed a suit for possession by way of specific
performance of the agreement to sell dated 03.07.2012. It was the pleaded
case of the plaintiff-respondent that the defendant-petitioner had delivered
actual physical possession of the building in dispute to the
plaintiff-respondent. Initially an application was filed by the plaintiff-
respondent for appointment of a Local Commissioner which was dismissed
by the Trial Court vide order dated 11.12.2013. The onus of issue No.1 was
cast upon the plaintiff-respondent. Having failed to lead any cogent evidence
qua his possession, a second application for appointment of a Local
Commissioner was filed for ascertaining the possession of the property
integrity of this order/judgment.
CR-7868-2017 (O&M) -3-
which was allowed by the Trial Court vide order dated 20.03.2017.
Aggrieved by the same, the defendant-petitioner had filed CR-2515-2017
which was allowed vide order dated 24.07.2017. The learned counsel would
further contend that now by way of the present application for additional
evidence, the plaintiff-respondent's only endeavour is to circumvent the
order dated 24.07.2017 passed by this Court in CR-2515-2017. Once the
application for appointment of a Local Commissioner was dismissed, which
was filed only to ascertain the possession of the plaintiff-appellant, the
present application by being termed as an application for additional evidence
could not have been allowed.
4. Per contra, the learned counsel for the plaintiff-respondent
would contend that for the determination of the possession of the property,
the photographs, bill and memory card were a must and were hence
produced as additional evidence.
5. I have heard the learned counsel for the parties.
6. In the present case, the onus of issue No.1 was cast upon the
plaintiff-respondent who was to prove his possession by leading affirmative
evidence in order to establish the identity of the property as well as
possession as pleaded by him. Having failed to do so in his affirmative
evidence, the plaintiff-respondent filed a second application for appointment
of a Local Commissioner which was allowed by the Trial Court vide order
dated 20.03.2017. The same was challenged before this Court in
CR-2515-2017 which was allowed vide order dated 24.07.2017. In para 4 of
the order it has been noticed that during the proceedings, some photographs
Mark F to S were shown to the defendant-petitioner which were claimed to
integrity of this order/judgment.
CR-7868-2017 (O&M) -4-
be of the suit property. However, the said photographs were denied by the
defendant-petitioner and on this premises the application was filed for
appointment of a Local Commissioner. It is apt to note that the said
photographs which the defendant-petitioner was confronted with were
marked as Mark F to S and even at that stage had not been proved in
accordance with law. In the garb of an application for additional evidence
what could not be led in rebuttal evidence cannot be allowed.
7. In view of the above, the present revision petition is allowed.
The impugned order dated 02.11.2017 (Annexure P-10) is set aside. The
application filed by the plaintiff-respondent for leading additional evidence
is dismissed. Pending applications, if any, also stand disposed off.
04.07.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
