A trial court cannot allow the production of additional evidence without considering its relevance and materiality. The burden is on the party seeking to produce additional evidence to show that it is relevant and material to the controversy and that it could not be produced earlier despite due diligence.

G.C.Garg, J.

1. Aggrieved by the order of the trial Court granting prayer of the defendant-respondents for production of additional evidence, the plaintiff has filed the present revision petition.

2. The Plaintiff filed a suit for declaration and possession in respect of the property held by Gehal Singh on the ground that he was the nearest collateral and, therefore, entitled to the property after the death of the said Gehal Singh. The suit was resisted primarily by Didar Singh defendant by propounding a Will in his favour. It was also pleaded by him that he and Gehal Singh are the sons of Sant Kaur from different fathers and, therefore, he was otherwise entitled to the property. After the conclusion of the evidence, Didar Singh -defendant moved an application under Order 18, Rule 17-A read with Section 151 of the Code of Civil Procedure for additional evidence. In the application it was alleged that he was half brother of Gehal Singh, who died on August, 31, 1986 and that the last rites of Gehal Singh were performed by him and that the ashes were also immersed in Gurudwara Patal Puri, Kiratpur Sahib, where an entry was made mentioning the name of the person who immersed the ashes. It was further stated in the application that the said entry could not be produced earlier as it was not in the custody of the applicant when he was leading evidence and that his counsel never suggested that this entry should be produced in evidence. In the end, it was stated that a litigant should not be allowed to suffer because of the negligence of the counsel. This prayer of Didar Singh - defendant for additional evidence was opposed by the plaintiff. The trial Court, however, vide order dated January 6, 1992 allowed the application and permitted the defendant-Didar Singh to prove the entry by way of additional evidence. It is how the present revision petition came to be filed at the instance of the plaintiff.

3. The trial Court allowed the application for additional evidence only by observing that a party can not be allowed to suffer for any omission and lapse on the part of the counsel and that the rules of procedure are meant to advance the cause of justice. The learned trial Court, however, no where recorded that the document sought to be produced by way of additional evidence was relevant to the controversy in dispute between the parties or that it could not be produced earlier despite due diligence and that it was not in the knowledge of the applicant.

4. The learned counsel for the petitioner vehemently submitted that the entry sought to be produced is neither relevant nor necessary for the disposal of the suit, even otherwise the applicant defendant had admitted his relationship with Gehal Singh to be that of half brother and the production of the entry would not prove the relationship of the applicant with deceased-Gehal Singh. Relationship is required to be proved in terms of the provisions of Section 50 of the Indian Evidence Act and as such, no reliance on such an entry could be placed. Such entry can be made at any time and is not kept in the regular course under any provisions of law and that any person can immerse the ashes of a deceased person. Learned counsel also submitted that the said entry was neither relied upon during the course of pleading nor referred to when the evidence was being led and even if the counsel was remiss in not producing or relying upon it during the course of pleadings and the evidence, it gave no cause to the applicant to produce the additional evidence. The applicant having failed to satisfy the Court that evidence ought to be produced by the defendent-applicant was not within his knowledge and in the absence of cogent reasons as to why it could not be produced at the time when he was producing evidence, the application for additional evidence would be only with a view to prolong the proceedings in the trial Court. The present being not a case where the entry was not in the knowledge of the app