IMPORTANT POINT
Before leading additional evidence, the party must satisfy the court that the proposed evidence was not within its knowledge or could not have been led earlier despite due diligence.

JUDGMENT :

Ajay Mohan Goel, J.

CMP No.4462 of 2024

In view of the averments made in the application, seeking early hearing of the petition, the same is allowed and disposed of.

CMPMO No.336 of 2019

2. By way of this petition, the petitioner has challenged order dated 26.06.2019, in terms whereof, an application filed by the petitioner seeking liberty of the Court to lead evidence by examining himself as a witness stands dismissed.

3. Brief facts necessary for the adjudication of the present petition that the respondents herein have preferred a suit against the petitioner who is a defendant therein. The evidence of the parties was over. The matter was being listed for the purpose of final hearing when an application stood filed under Order XVIII, Rule 17 of the Civil Procedure Code on behalf of the present petitioner in which it was averred that due to inadvertence the examination-in-chief of the applicant/defendant was misplaced during the course of evidence and could not be traced either in the Court file or in the file of the counsel of the applicant and therefore, as the statement of the applicant was essential, the application be allowed and permission be granted to record his statement in the Court as a witness. This application has been rejected by the learned Court below in terms of the impugned order by assigning the following reasons:-

“3. I have heard learned counsel for the parties and have gone through the records carefully.

4. When the present application was filed, the case was listed for final orders and the evidence of the applicant was already closed by the Id Counsel for the applicant vide separate statement recorded and on record Therefore, the application is in the nature of additional evidence. It was laid down by Apex Court in Salem Advocate Distt. Bar Association versus Union of India A.I.R. 2005 SC 3353 that before additional evidence can be led, the party proposing to lead additional evidence must satisfy the court that the proposed evidence was not within its knowledge or the evidence could not have been led earlier despite the exercise of due diligence. In the present case, the examination of the applicant were known to the defendants as applicant himself is the defendant no. 1 and it is he, in whose favour the alleged will was executed by the testator. The perusal of the file shows that the present case has been listed for the Dws since 12.07.2017 and was closed on 18.07.2018 it was for more than one year the case was listed for the Dws and there were as many as 8 opportunities were availed by the applicant to produce his evidence It is not the case of the applicant that he was not given the adequate opportunity to bring his evidence to the court During whole of the trial the examination of the applicant was very much within the knowledge of the applicant, still applicant was not able to examine himself and without any caution closed his evidence. Thus, it does not shows the due diligence on the part of the applicant.

5. Moreover, as noted above, the case was finally heard and was listed for orders for 26.09.2018. However, due to leave of the PO the same could not be pronounced. Thus, it is only in order to improve his case, the applicant came forward with such an application, under the impression, to avoid any final judgment against him Thus, it is evidently clear that the present application has been meant purely to fill the lacunae in his evidence. The reason given was not acceptable. hence, the application does not satisfy the criterion laid down by Hon'ble Apex Court.”

4. Learned counsel for the petitioner has submitted that even if it is to be assumed that what is contained in the impugned order is correct, then also in the interest of justice one opportunity be granted in favour of the defendant to enter into the witness box, for the reason that in the absence of his statement being on record, irreparable loss will be caused to him.

5. This Court is of the considered view that as the petitioner has not