CR No.5115 of 2010 (O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No.5115 of 2010 (O & M)

Date of decision: 17.08.2010

Gurmeet Singh

.. Petitioner

Versus

M/s Aggarwal Traders Commissioner Agents through its Proprietor

.. Respondent

CORAM:

HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

Present:-

Mr.Sukhjit Singh, Advocate

for the petitioner.

* * * *

Mehinder Singh Sullar, J. (Oral)

The epitome of facts, relevant for disposal of present revision petition

and, emanating from the record are, that M/s Aggarwal Traders Commissioner

Agents, respondent-plaintiff (hereinafter to be referred as “the plaintiff”) filed the

suit for recovery of Rs.7,37,320/- on the basis of account books (bahi entries)

against Gurmeet Singh, son of Gurdev Singh, petitioner-defendant (for short “the

defendant”).

2.

The petitioner-defendant contested the suit, stoutly denied the

allegations contained in the plaint and prayed for dismissal of the suit. The

evidence of the defendant was closed by the trial Court by virtue of order dated

25.05.2010.

3.

The petitioner-defendant moved an application for permission to lead

additional evidence to prove the affidavit of Darshan Singh previous accountant

(Munim) of the plaintiff-Firm, inter alia, pleading that during the course of leading

his evidence, he received an affidavit (Annexure P-1) of one Darshan Singh, who

was working as a Munim with plaintiff-firm, which would go to show that the

entries dated 05.11.2003 and 7.11.2003, on the basis of which, the present suit was

CR No.5115 of 2010 (O & M)

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filed, are manipulated and result of fraud. The petitioner wanted to examine said

Darshan Singh to prove his affidavit. The defendant claimed that he was suffering

from knee disease and was unable to move from one place to another. Due to this

reason, he could not instruct his counsel. Now, his son contacted and apprised his

counsel with regard to the affidavit of Darshan Singh, previously Munim of the

plaintiff-Firm. That being so, the defendant filed an application for additional

evidence to permit him to prove the affidavit of aforesaid Darshan Singh-Munim.

4.

The plaintiff contested the prayer of the defendant, filed the reply, inter

alia pleading that five opportunities were granted to the defendant to conclude his

evidence. His evidence was rightly closed by the trial Court. Concisely, according

to the plaintiff-Firm that no ground for permitting the defendant to produce

additional evidence is made out and prayed for dismissal of the application.

5.

The trial Court dismissed this application of the defendant vide

impugned order dated 15.06.2010. The operative part of which is as under:-

“The defendant examined Gurmit Singh as DW1, Bikram Singh as DW2

but he failed to lead further evidence despite last opportunity and even

undertaking given by his counsel on 5.4.2010 and 11.5.2010 so the

evidence of the defendant was closed by order on 25.5.2010 and when

the case was fixed for rebuttal evidence, the defendant moved the

instant application. In the additional evidence defendant intend to

prove the affidavit of Darshan Singh son of Jarnail Singh dated

4.1.2005. perusal of file reveals that earlier said witness was

summoned by the plaintiff in his evidence but he did not appear. So, the

defendant could examine the said witness when he was leading his

evidence. Thus there is no due diligence on the part of the defendant.

The instant application has been filed just to delay this case. Hence, the

same is dismissed”.

6.

The petitioner-defendant did not feel satisfied with the impugned order

and filed the present revision petition.

7.

As is evident from the record that petitioner-defendant sought to prove

the affidavit (Annexure P-1) of Ex-Munim of plaintiff-Firm by way of additional

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evidence. The trial Court rejected the application for addi