GANESH DUTT Vs. DHARAM DUTT
HIGH COURT OF HIMACHAL PRADESH
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KAMLESH SHARMA, J. -
(1.) This Revision petition is directed against the order dated 22 -8 -1991 whereby the application under Order 18, Rule 17 -A, C. P C. of the petitioners -plaintiffs for additional evidence was dismissed.
(2.) The petitioners -plaintiffs are seeking permission to examine one witness Basti Ram son of Chananoo Ram by way of additional evidence. Basti Ram is one of the marginal witnesses of the will which is subject matter of dispute in the suit being tried by the Senior Sub -Judge. The first application dated 30 -8 -1990 filed by the petitioners -plaintiffs was allowed by the trial Court vide its order dated 7 -9 -1990, which was set aside by this Court on 31 -10 -1990 on the ground that it was not a speaking order. The application was also found vague and not strictly in accordance with Order 18, Rule 17 -A, C. P. C. However, the petitioners -plaintiffs were permitted to file a fresh application and the trial Court was directed to decide it on merits - It was in this background that second application dated 16 -11 -1990 was filed by the petitioners -plaintiffs which stands rejected by the impugned order, on the ground that the reason given in the second application for not producing Basti Ram as their witness earlier is contrary to the reason given in the first application. In the first application, the reason was that they were under the impression that the witness being marginal witness will be examined by the respondents -defendants but in the second application the additional reason given is that they did not know about the whereabouts of the witness till they closed their evidence It was after due diligence that they could locate him and wanted to produce him by way of additional evidence. According to the trial Court "this plea was not convincing as the address of the witness is on the will already on the record."
(3.) I have heard the learned Counsel for the parties and gone through the record - Sh. Naresh Sood appearing vice learned Counsel for the petitioners -plaintiffs, submits that the Senior Sub -Judge has dismissed the application on wrong grounds without applying the well settled principles of allowing additional evidence. According to Sh. Kuthiala the requirements of Order 18 Rule 17 -AC. P. C. are satisfied on the averments made in the application and additional evidence of Basti Ram, one of the marginal witnesses to the will, may be allowed in the interest of justice. He urges that if the petitioners -plaintiffs are found negligent, the respondents -defendants may be compensated by awarding reasonable costs. On the other hand, Sh, Bhupender Gupta, learned Counsel for the respondents -defendants, has supported the impugned order and has pointed out that the reason given in the application for not producing Basti Ram as their witness is prima facie incorrect as his address could be ascertained by the petitioners -plaintiffs from the will on record He has relied upon the judgment in Joginder Singh v Baru Mal, 1990 (1) SLJ 469 to make his submissions that additional evidence should not be allowed if requirements of Order 18 Rule 17 -A C. P. C. are not strictly satisfied.;
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