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2000 DIGILAW 800 (PNJ)

Phool Chand v. Sh. Hari Kishan

2000-07-26

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Phool Chand (plaintiff) moved an application for amendment of the plaint whereby he wanted to incorporate the date of death of his mother in para 2 of the plaint. This amendment was allowed on the plaintiffs counsel making a statement that in case amendment was allowed, he would not lead any further evidence. Plaintiff made an application for leading evidence for proving the date of the death of his mother. It may be mentioned that the plaintiff and the defendant are brothers. Smt. Nathia Devi was their mother. According to the plaintiff, Smt. Nathia Devi died on 16.12.79. According to the defendant, she died on 23.9.79. Issue was framed regrading the date of death of Smt. Nathia Devi after the plaint was amended. Plaintiff wanted to lead evidence to prove that his mother had died on 16.12.79 and in support of this assertion of his, he wanted to produce death certificate. Defendant opposed this application urging that the plaintiff could not be allowed to lead this evidence particularly when he had been allowed to amend the plaint on his counsel making a statement that he would not lead any evidence. 2. Vide order dated 14.6.93, Sub Judge First Class, Ambala Cantt. declined this application. While declining this application what weighed with the Court was that the plaintiff had been allowed to amend his plaint on the plaintiffs counsel making a statement that he would not lead any evidence to substantiate his plea introduced by way of amendment and if the plaintiffs counsel had not made this statement and amendment had still been allowed, the defendant could have gone in revision against the order of amendment. 3. Aggrieved from this order dated 14.6.93, plaintiff has come up in revision to this Court. 4. In my opinion, this application moved by the plaintiff under order 18 rule 17-A Civil Procedure Code should have been allowed. He should have been allowed to lead evidence to prove that his mother had died on 23.9.79 when a specific issue had been framed regarding the date of death of his mother Smt. Nathia Devi. Defendant is not a stranger. He is the real brother of the plaintiff, Smt. Nathia Devi was mother of both of them. Defendant is also in the knowledge of the death of his mother. Defendant is not a stranger. He is the real brother of the plaintiff, Smt. Nathia Devi was mother of both of them. Defendant is also in the knowledge of the death of his mother. If the plaintiff leads evidence to prove that she died on 23.9.79, he could rebut this evidence and prove that she died on 16.12.79. As to the date of death of Smt. Nathia Devi, plaintiff and defendants are evenly balanced and no body has an upper hand over the other. Even otherwise when the plaintiff was allowed to amend the plaint, the parties got fresh opportunity to lead evidence on the additional plea that arose from the pleadings of the parties. It was held in Satnam Singh v. Tarlok Nath Kalia, AIR 1974 P&H 287 that if the permission to raise an additional issue was granted, a fresh opportunity would have to be granted to the parties to lead evidence on the same. In Gurnek Singh v. Gurbachan Singh, (1992-2)102 PLR 205 it was held that where the court while allowing amendment of the plaint observed that none of the parties would be entitled to lead further evidence, it did not mean a direction against the admission of additional evidence even if a case was made out at a later stage. 5. In my opinion, the plaintiffs right to lead evidence on the plea that arose from the amended plaint should not be gagged by the statement of his counsel that if he was allowed to raise the amended plea, he would not lead any additional evidence. Plaintiff wanted to tender only death certificate showing the date of death of his mother. 6. For the reasons given above, this revision is allowed. Plaintiff is allowed to lead additional evidence to prove that his mother had died on 23 9.79 and he can tender death certificate in support of this part of his case, he shall pay Rs. 1,000/- as costs to the defendant if he means to avail this order. 7. Parties shall appear before the trial court on September 3, 2000. Petition allowed.