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2000 DIGILAW 782 (PNJ)

Arjandev Singh v. Sukhpal Singh

2000-07-21

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a Civil Revision and has been directed against the order dated 8.12.1999, passed by the Additional Civil Judge, Sr. Division, Gurdaspur, who dismissed the application of the petitioners under Order 18 Rule 17-A C.P.C. 2. The petitioners are defendant No. 5 to 7 before the trial Court. S/Shri Sukhpal Singh and Major Singh are the plaintiffs and they alleged themselves to be the minor sons of Shri Devinder Singh husband of Smt. Balwindar Kaur, defendant No. 1. They filed a suit for declaration in collusion with defendant No. 1 Smt. Balwinder Kumar that the suit land was the joint Hindu family co- parcenary property. They have challenged the Will executed by their father Shri Devinder Singh in favour of Smt. Balwinder Kaur. The present petitioners are the transferees from Smt. Balwinder Kaur and the case set up by them was that Smt. Balwinder Kaur was a beneficiary under the Will dated 1.10.1990. She had colluded with the plaintiff. Therefore, Smt. Balwinder Kaur did not appear in the suit and she was proceeded ex parte. The petitioners wanted that the Will dated 1.10.1990 should be proved on the record as the original Will dated 1.10.1990 was in the power and possession of Smt. Balwinder Kaur. Further the case set up by the petitioners is that they have been able to get the photo copy of the said Will from the mutation file of the estate of Devinder Singh in village Rania, District Gurdaspur and they want to prove the said Will by adducing additional evidence. They could not prove the Will inspite of due diligence when they were leading the evidence. The onus to prove the issue was upon the plaintiffs. The execution of the Will dated 1.10.1990 is very material and, therefore, the permission should be granted to them to prove the factum of the execution of the Will executed by Shri Devinder Singh in favour of Balwinder Kaur. 3. The prayer made by the petitioners was opposed by the plaintiffs who filed the reply. According to them the Will being relied upon by the defendants- petitioners is a fabricated document. No valid Will was ever executed by Devinder Singh. The petitioners have already moved an application to prove the alleged Will which was dismissed. The present application is not legally maintainable. According to them the Will being relied upon by the defendants- petitioners is a fabricated document. No valid Will was ever executed by Devinder Singh. The petitioners have already moved an application to prove the alleged Will which was dismissed. The present application is not legally maintainable. The defendants have taken sufficient opportunities for producing the Will and they closed the case and now the permission cannot be granted to them to lead evidence in support of the Will dated 1.10.1990. 4. After giving the contest before the trial Court, the learned Additional Civil Judge, Senior Division, Gurdaspur, vide impugned order dated 8.12.1999 and for the reasons given in para No. 4 of the impugned order, dismissed the application and para No. 4 of the impugned order is reproduced as under :- "4. The learned Counsel for the applicant/defendants has argued that applicant/defendants have got the photocopy of Will dated 1.10.1990 executed by father of respondent/plaintiffs in favour of defendant No. 1 and now respondent/plaintiffs have filed the present suit in collusion with defendant No. 1 to harass the applicant/defendant No. 5 to 7. The learned Counsel for the applicant/defendants has further argued that applicant/defendants could not produce the said evidence while leading their main evidence so they should be allowed to lead additional evidence by producing the secondary evidence of the alleged Will. While on the other hand, learned Counsel for the respondent/plaintiffs has vehemently opposed the contentions taken by the applicant/defendants and has argued that applicant/defendants were within the knowledge of alleged plea regarding the Will dated 1.10.1990 and applicant/defendants did not exercise due diligence of producing the said evidence on the Will dated 1.10.1990, and therefore, the present application does not come within ambit Order 18 Rule 17-A C.P.C. The learned counsel for the respondent/plaintiffs has cited a case 1998(3) The Punjab Law Reporter 561, Khuda Bux v. Nafis Ahmed (Pb. & Haryana High Court) and has argued that the evidence to the produced by way of additional evidence were within the knowledge of applicant/defendants and if applicant/defendants did not exercise due diligence then the application deserves dismissal. & Haryana High Court) and has argued that the evidence to the produced by way of additional evidence were within the knowledge of applicant/defendants and if applicant/defendants did not exercise due diligence then the application deserves dismissal. The learned counsel for the respondent/plaintiff has further argued that applicant/defendants must satisfy the Court that they cannot produce the said evidence after due diligence exercised and applicant cannot be permitted to lead additional evidence subsequently on the facts which were already in existence and known to the party concerned. The learned counsel for the respondent/plaintiffs have further argued that onus to prove the Will was on the respondent/plaintiff and the onus was not on the applicant/defendants and respondent/plaintiff have not led their evidence on the issue regarding the alleged Will and if the respondent/plaintiff does not prove the issue, inference may be drawn against the respondent/plaintiffs regarding the issue on the alleged Will. Keeping in view the arguments advanced by both the learned counsel for the parties and from the perusal of documents and pleadings on the record, I am of the view that issue regarding the alleged Will was framed vide order dated 7.6.1996 and both the parties have led their evidence on the issue No. 2 regarding the Will dated 1.10.1990. Moreover, the onus to prove this issue is on the respondent/plaintiff and this matter has already been decided vide order dated 21.10.1990 and applicant/defendants have not been able to show that they could not produce the evidence on the Will inspite of due diligence because applicant/defendants have ample opportunity to see what evidence is to be led by them while at the stage of evidence of applicant/defendants. As the applicant/defendants have not been able to show merit in the present application, therefore, application being without merit, fails and stands dismissed. Thus, application stands disposed of. However, the decision of this application shall not effect the merit disposal of the suit." 5. I have heard Shri Sudeep Mahajan, learned counsel appearing on behalf of the petitioners and Shri Hemant Kumar Gupta, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case. 6. However, the decision of this application shall not effect the merit disposal of the suit." 5. I have heard Shri Sudeep Mahajan, learned counsel appearing on behalf of the petitioners and Shri Hemant Kumar Gupta, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case. 6. Order 18 Rule 17-A C.P.C. lays down that where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when they party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just. 7. The reading of the above provision would show that the evidence can be produced subsequently on two counts; firstly, that the proposed evidence was not within the knowledge of the party or it could not be produced by him at the time when the party was leading the evidence. Factum of evidence is one thing and production of evidence is other thing. 8. Order 18, Rule 2(4) lays down that notwithstanding anything contained in this Rule, the court may, for reasons to be recorded, direct or permit any party to examine any witness at any state. If both the provisions are read together it would amount that Court has the power to allow any party to examine any witness at any stage. 9. Now let us see how the things shaped before the trial Court. The suit was filed by Sukhpal Singh and Major Singh minor sons of Shri Devinder Singh through Smt. Kulwinder Kaur daughter of Bawa Singh acting as next friend. Balwinder Kaur was made as defendant No. 1. She was proceeded ex parte. Prima facie Balwinder Kaur was siding with the plaintiffs. The defendants were the transferees of the land. If Balwinder Kaur had some pre-existing right in the property vis-a-vis her husband, Devinder Singh, and Shri Devinder Singh has executed a Will in favour of Balwinder Kaur, in that eventuality Balwinder Kaur might become the full-fledged owner of the property on the basis of the Will and, therefore, she could validly transfer the property in favour of defendants No. 5 to 7. It is also the case of the parties that on the basis of the Will a mutation was effected in favour of Smt. Balwinder Kaur. The original Will dated 1.10.1990 if any must be in the possession of Smt. Balwinder Kaur. When the petitioners purchased the land they might have consulted the revenue record i.e. the Jamabandi in order to have the proof of ownership of Smt. Balwinder Kaur. The Will dated 1.10.1990 was not in power and possession of the present defendants. They could not produce it or prove it when the trial was going on. The moment they came to know that the copy of the Will is lying in the record of the revenue authorities, they made an application for the proof of the Will. The document dated 1.10.1990 i.e. the Will is a material document because the title of the present petitioners rests on that document. 10. In these circumstances, the trial Court ought to have allowed the application of the petitioners under Order 18 Rule 17-A C.P.C. The learned counsel for the petitioners relies upon a judgment 1999(3) Civil Court Cases 109, Braham Singh v. Ajit Singh. As per this citation the provision of Section 115 of the Code of Civil Procedure should be invoked if the impugned order occasions a failure of justice or causes an irreparable injury to the party against whom it was made, this section must come to the rescue of the aggrieved party and the High Court should not fail in its duty in not interfering in such impugned orders. Also it was observed by the Honble Bench that if a particular party with due diligence cannot produce the evidence which was to within its knowledge, or could not be produced by him at the time when that party was leading his evidence then additional evidence could be produced by the said party. Here is a peculiar case because defendant No. 1 Smt. Balwinder Kaur is siding with the plaintiffs. She is not ready to co-operate about her ownership. The moment the defendants came to know that the copy of the Will is lying in the revenue file of the estate of Shri Devinder Singh, they made an application. Factum of execution of the Will is one thing and where the document was lying, that is separate thing. She is not ready to co-operate about her ownership. The moment the defendants came to know that the copy of the Will is lying in the revenue file of the estate of Shri Devinder Singh, they made an application. Factum of execution of the Will is one thing and where the document was lying, that is separate thing. Knowledge as understood under Order 18 Rule 17-A must relate to the evidence sought to be produced. The defendants-petitioners were not aware where the copy of the Will was lying. Of course, they were aware that Shri Devinder Singh had executed a Will. 11. Faced with his difficulty, learned counsel appearing on behalf of the respondent, Shri Gupta, relies upon 1998(3) PLR 561, Khuda Bux v. Nafis Ahmad and submitted that the petitioners have not been able to make out a case within the frame of Order 18 Rule 17-A C.P.C. and in these circumstances, the impugned order does not call for any interference. 12. I am not in a position to subscribe to the argument raised by the learned counsel for the petitioners. As I have stated above, the petitioners were never aware that the photo copy of the Will is lying in the revenue file of the estate of Shri Devinder Singh. 13. The learned counsel for the respondents also placed reliance on 1999(1) PLR 669 :, Kuldeep Singh v. Surjit Kaur and others. The facts of this case are also distinguishable. In the cited case, the evidence sought to be produced by way of additional evidence was in the knowledge of the petitioners but in the present case, the petitioners were not aware that the copy of the Will is lying in the revenue file. The original Will of course has not been produced by Smt. Balwinder Kaur. 14. In this view of the matter, I allow this revision and set aside the impugned order subject to payment of Rs. 500/- as costs and the directions are given to the learned Additional Civil Judge (Sr. Division) to allow the petitioners to lead additional evidence according to law so that the Will dated 1.10.1990 may be got proved by the petitioners, according to the law. Revision allowed.