The judgment establishes the principles governing the admission of additional evidence under Order 41 Rule 21 CPC and 18 Rule 17 CPC, emphasizing the need for the court to consider the necessity and relevance of such evidence for the just decision of the case.

Manmohan Singh, J. (Oral)

1. By way of this order I propose to decide application being I.A. No.12426/2014 under Order 18 Rule 3 and 17 read with Section 151 CPC filed by the plaintiff.

2. It is stated in the application that the defendants had entered into a collaboration agreement dated 1st June, 2010 read with collaboration agreement dated 22nd October, 2010, with the plaintiff to develop the property bearing No.A-42, N.D.S.E. Part-II, New Delhi, measuring 250 sq.yds. When the defendants failed to perform their part of obligations, the plaintiff filed the aforesaid suit for specific performance. Out of the agreed consideration of Rs.2,95,00,000/-, the plaintiff had paid a sum of Rs.1,35,00,000/- before filing of the suit and had deposited the balance consideration of Rs.1,60,00,000/- in Court pursuant to order dated 12th January, 2011.

3. The defendants contested the suit by filing their written statement. On the pleadings of the parties, the issues were framed on 28th July, 2011 and thereafter the plaintiff filed its affidavit of evidence and proved the facts stated in the plaint by evidence by way of affidavit of Shri Ajay Sharma, Director of the plaintiff company as PW1 and also exhibited certain documents exhibited as Ex. PW1/1 to Ex. PW1/2 have been marked as mark ‘A’ & ‘B’ in support of its case. Thereafter, the defendants led their evidence.

4. It is stated that during further cross-examination of the defendant No.2 on 14th March, 2014, the plaintiff had produced the original minute book and the original certificate of incorporation and confronted the defendant No.2. The copies of the said originals were already on record as mark ‘A’ and ‘B’ when the defendant No.2 had stated that the two are different based on the endorsement with regard to the true copies.

5. After the defendant’s evidence was closed, the plaintiff was given an opportunity to lead evidence in rebuttal and accordingly, the plaintiff filed an affidavit of PW-1 in evidence in rebuttal. The case was fixed for 21st April, 2014 for cross-examination of plaintiff’s witness in rebuttal. The plaintiff’s said witness was present in Court on the said date with the original certificate of incorporation and original minute book, however the matter was adjourned on that date to 9th May, 2014, when again PW-1 was present with the documents. However, the cross-examination of PW-1 in rebuttal could not be recorded on that date because of the objections raised by the defendant No.2 and accordingly the matter was adjourned to 11th July, 2014 for filing the reply to objections and for the hearing on such objections.

6. It is further averred in the application that if the plaintiff is not permitted to lead the evidence as filed by way of affidavit in evidence in rebuttal, the plaintiff would suffer irreparable loss and injury.

7. Reply on behalf of the defendant No.2 to application under Order 18 Rule 3 and 17 CPC read with Section 151 CPC was filed wherein it was stated that it is the plaintiff who deliberately and with malafide intention failed to perform the collaboration agreement. It is stated that the evidence in rebuttal by way of affidavit, which the plaintiff has filed on 19th March, 2014 is in respect of issue No.1 and after the conclusion of evidence hence no opportunity can be provided to the plaintiff. It is further stated that the plaintiff cannot be permitted even for additional evidence and/or to permit the recalling of PW-1 to lead additional evidence by way of affidavit and relied on the case of Vadiraj Naggappa Vernekar (D) through LRS vs. Sharad Chand Prabhakar Gogate, reported in V (2009) SLT 250 wherein it was held that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examin