A court may permit additional evidence to ensure fair adjudication if it is relevant, even after evidence closure, stressing the necessity to examine evidence related to a Will in contested property lawsuits.

JUDGMENT :

Sudeepti Sharma J.

The present revision petition is filed for setting aside order dated 28.04.2025 passed by Civil Judge (Jr. Division), Panipat, whereby, application filed by respondent for additional evidence was allowed.

2. The brief facts of the case are that petitioner filed civil suit for declaration to the effect that petitioner is lawful owners in possession of property mentioned in the civil suit. Respondents appeared and filed reply claiming their entitlement to the legacy of Dhanpat Ram, on the basis of Will dated 25.08.2009 alongwith other objections. Thereafter, issues were framed, evidence was led by the petitioner and closed vide order dated 07.05.2024. Thereafter, the case was fixed for evidence of respondents and respondents led evidence. Vide order dated 10.01.2025, the evidence of respondents was closed.

3. The respondents moved application under Section 151 CPC for permission to lead additional evidence by stating therein that when the counsel for respondents was going through the case file for preparing it for final arguments, then it transpired/revealed that the witnesses namely Dharampal Numberdar and Rampal Numberdar and scriber Sh. Tasbir Singh Kundu, Vasika Nawis, Panipat, Tehsil Compound, Panipat as well as clerk from the office of S.R. Panipat could not be got examined for proving the Will. The application filed by the respondents was allowed by Civil Judge (Jr. Division), Panipat vide its order dated 28.04.2025 which is challenged in the present revision by the petitioner.

4. Learned counsel for the petitioner contends as under:-

(i) that additional evidence cannot be allowed and Order 18 Rule 17A of CPC is specifically deleted in the year 2002 which was for production of evidence not previously known or which could not be produced despite due diligence.

(ii) that once evidence is closed on their own statement vide order dated 10.01.2025 and they never challenged order dated 10.01.2025 therefore, without challenging the order they cannot move an application for additional evidence.

(iii) that additional evidence can be allowed in case new evidence came into picture and not because of negligence of the counsel and in the present case it was in the knowledge of the respondents.

(iv) that what cannot be done directly cannot be done indirectly.

5. Learned counsel for the petitioner relies on the following judgments:-

(i) Desh Raj Vs. Balkishan (dead) through proposed legal representative Ms. Rohini [(2020) 2 SCC 708]

(ii) K. K. Velusamy Vs. N. Palanisamy [2011(86) ALR 457]

(iii) Bhim Raj vs. Jai Bhagwan [2000(3) RCR (Civil) 16]

(vi) Zahira Habibullah Sheikh and another Vs. State of Gujarat and others [2004(3) RCR (Criminal) 347]

6. Per contra learned counsel for the respondents contends as under:-

(i) that suit is for declaration of share in property and it is imperative for pronouncement of judgment to prove 'Will'.

(ii) that three witnesses were to be examined by way of additional evidence which are already examined since, vide order dated 31.07.2025 this Court ordered that proceedings before trial court to go on but no final order be passed.

(iii) that three witnesses examined by the respondents have been cross-examined as well by the petitioner. And no prejudice would be caused to the petitioner since, no delay has been caused in examination of the witnesses and application filed by the respondents was allowed, subject to payment of cost.

(iv) that 'Will' is part of the pleadings in the written statement, therefore, it cannot be stated to be a new evidence.

7. I have heard learned counsel for the parties and perused the whole file with their able assistance.

8. A perusal of whole file shows that the suit was filed by the petitioner to declare that he is lawful owner in possession of suit property. Respondents filed written statement and stated that they are in peaceful possession of suit land on the basis of registered Will bearing Vasika No.257 dated 25.08.2009. In replication it was alleged that Will beari