Court ruled that additional evidence should not be permitted at rebuttal if it is merely an effort to fill gaps in prior evidence without demonstrated diligence.

JUDGMENT :

HARKESH MANUJA, J.

1. By way of present revision petition, challenge has been laid to the order dated 16.11.2023 (Annexure P-1) passed by the learned Addl. Civil Judge (Sr. Divn.), Gohana, Sonipat, whereby an application for leading additional evidence preferred at the instance of the respondent/plaintiff at the rebuttal stage was allowed.

2. Briefly stating, based on an agreement to sell dated 10.12.2013, the respondent-plaintiff filed a suit for specific performance against the petitioners- defendants. The suit was filed on 02.01.2016, whereas the written statement was filed on 11.05.2016. Thereafter an amended plaint was filed on 15.07.2017 followed by the filing of amended written statement. Originally the issues were framed on 05.08.2016 and the evidence of respondent/plaintiff later came to be concluded on 02.12.2022.

3. Thereafter the evidence of the petitioners/defendants was closed on 03.05.2023 and the matter was posted for rebuttal and arguments. In the meanwhile, on 13.10.2023, an application was filed on behalf of the respondent/plaintiff seeking permission to lead additional evidence to the following effect:-

“1. That the above said matter is pending before this Hon'ble court and fixed for today i.e. 18.09.2023 for the purpose of rebuttal evidence cum final argument.

2.. That the defendant at the stage of Evidence stated in affidavit as well as in cross examination that they never executed the agreement P.2/3.P.4.P.11 and also stated that they never took any money for consideration of agreement to sell.

3. That the defendant further stated that son of plaintiff took the signature of the defendant by cheating, therefore, it is necessary to call the additional witness i.e. son of the plaintiff to prove the alleged facts stated by the defendants in evidence by way of affidavit as well as in cross examination of the defendant.

4. That the witness namely Mohit Kumar S/o Sh. Gnaga Ram who is the eyewitness of the agreement dated 10.12.2013 an/26.12.2013 and he did not examined before this court due to lack of knowledge.

5. The examiner of the copying agency of this Hon'ble court is required to prove the authenticity of the certified copies of the statement namely Rajender and Ashok dated 03.12.2015 in case no.CRM-01/2020 Title as Kamlesh VS Rajender, Which is pending before this Hon'ble and fixed for 16.10.2023.

6. That one another crucial witness namely Sonu Sivanka who wrote the agreement in presence of both, the parties dated 10.12.2013/26.12.2013 has also been left off in the list of witnesses and could not be examined before the Hon'ble court due to the same above said reason.

7. That the plaintiff also wants to summon the witness namely Sh. Yashveer S/o Raj Singh to prove the part of sale consideration.

8. That the bank official/Manager is also required along with the original documents to prove the attested copy for part of the sale consideration, which was received by the defendants by way of Self cheque bearing number 953331 and statement of bank account bearing no. 339710100529 of Canara bank, Gohana of dated 27.12.2013.”

4. Notice of the aforesaid application was served upon the petitioners-defendants, who contested the same. The learned Trial Court vide its order dated 16.11.20203 allowed the application preferred at the instance of the respondent-plaintiff. The operative part of the said order is extracted hereunder:-

“Perusal of the file shows that the present matter relates to specific performance where in plaintiff has averred that defendant enter in to an agreement to sell and earnest money was paid. The said agreement has been denied along with the receipt. The matter is at the stage of rebuttal. Now, the application has been moved for additional e