JUDGMENT
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 applicant it ought not to have been permitted to be produced by way of additional evidence.
5. After hearing learned counsel for the parties, I find that the contention has force. The entry sought to be produced by way of additional evidence was not referred to in the written statement nor relied upon in the list of reliance. No reference was made to the said entry during the course of arguments nor was it put to any of the witnesses of the plaintiff or of the defendant-applicant. There is even no issue as to whether the defendant-applicant is a collateral of the deceased-Gehal Singh, Learned counsel for the respondent could not show as to how the said entry is relevant to the point in issue. The entire case of the defendant applicant is that he succeeded to the property on the basis of a Will left behind by Gehal Singh-deceased for which the evidence has already been produced. Learned counsel for the respondent has not been able to satisfy me that the entry sought to be produced by way of additional evidence was not within his knowledge nor any cogent reason has been shown as to why the said entry could not be produced at the time when the applicant was producing his evidence. Admittedly, this entry was as per the allegations made in the plaint and the application, in the knowledge of the applicant, he himself having got the entry made in the register. Even otherwise, it is not shown that it is a relevant piece of evidence which may throw some light on the point in controversy between the parties. It is not the case of the defendant-applicant that he is the real brother of Gehal Singh and, therefore, entitled to succeed in preference to the petitioner, who is the collateral. The view of the trial Court that a party should not be allowed to suffer for any omission and lapse on the part of the counsel, cannot, in my view, be accepted. The additional evidence on this ground can not be allowed to be produced especially when the same was in the knowledge of the applicant and he had the occasion to produce the same when opportunity was afforded to him to lead evidence. The trial Court clearly fell in error in permitting the production of this evidence without even recording that the said evidence was relevant and would throw light on the controversy between the parties relating to the subject matter of the suit. In the circumstances, I am clearly of the view that the trial Court acted illegally and with material irregularity in exercise of its jurisdiction in granting the prayer of the applicant for production of addition evidence.
6. For the reasons recorded above, the revision petition succeeds and is allowed. The order under revision is set aside and the application for production of additional evidence is dismissed with costs which are assessed at Rs. 500/-