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2001 DIGILAW 283 (PNJ)

Har Kaur v. Balwant Singh

2001-03-01

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is a Civil Revision and has been directed against the order dated 13.6.1998 passed by Additional District Judge, Hisar, who allowed the application of the defendants under Order 6 Rule 17 CPC at the appellate stage. It may be mentioned here that after the passing of the order dated 13.6.1998, the first Appellate Court passed the order dated 21.8.1998 and remanded back the suit to the trial Court for adjudication on the plea that the application under Order 6 Rule 17 CPC of the defendants has been allowed vide order dated 13.6.1998. 2. In the present revision, I will adjudicate about the legality and propriety of the orders dated 3.6.1998 and 21.8.1998. 3. Some facts can be noticed in the following manner :- Smt. Har Kaur filed a suit for declaration that she is owner of the suit property on the basis of registered will dated 10.9.1971. The suit was contested by Balwant Singh and Sultan Singh, who also put up an unregistered Will and besides that it was also pleaded by Balwant Singh that he is the adopted son of Dhan Singh. The trial Court ignored the unregistered Will and relied upon the registered Will of Dhan Singh in favour of Har Kaur and decreed the suit. 4. Aggrieved by the judgment and decree, the defendants filed the first Appeal before the first Appellate Court and during the pendency of the appeal they filed an application under Order 6 Rule 17 CPC praying that there was earlier litigation in the name of Har Kaur v. Balwant Singh etc. and that suit was dismissed and it was observed by the trial Court that adoption deed dated 27.1.1970 was a valid document. The defendants pleaded that they may be allowed to place on record the certified copy of the judgment and decree passed by the Court in the earlier suit. This application was contested by the plaintiff and vide impugned order dated 13.6.1998 the application was allowed subject to payment of Rs. 5,000/- as costs. Vide order dated 21.8.1998 the first Appellate Court set aside the judgment and decree of the trial Court and remanded the case back to the trial Court. 5. Not satisfied with the decision of the first Appellate Court, the present revision. 6. I have heard Mr. Arun Jain, Advocate on behalf of the petitioner, Mr. 5,000/- as costs. Vide order dated 21.8.1998 the first Appellate Court set aside the judgment and decree of the trial Court and remanded the case back to the trial Court. 5. Not satisfied with the decision of the first Appellate Court, the present revision. 6. I have heard Mr. Arun Jain, Advocate on behalf of the petitioner, Mr. V.P. Aggaral, Advocate on behalf of respondents No. 1 and 2 and with their assistance have gone through the records of the case. 7. Issue No. 2 was framed by the trial Court whether defendant No. 1 Balwant Singh is not the adopted son of Dhan Singh. This issue has gone against the plaintiff and in favour of the defendants and it was held that Balwant Singh is the adopted son of Dhan Singh. By the proposed additional evidence the defendants wanted to supplement the finding of the trial Court on issue No. 2, therefore, I do not see any illegality in the order dated 13.6.1998 when the application for leading additional evidence has been allowed. 8. So far as the passing of the order dated 21.8.1998 is concerned, it cannot be sustained in the eyes of law. The first Appellate Court ought to have accepted the additional evidence on the record and then it should have heard the arguments of the parties and dispose of the appeal on merits. There was no reason for the first Appellate Court to set aside the judgment and decree of the trial Court. Such decree could only be set aside if a de novo trial was required to be done. The provisions under Order 41 Rule 23 CPC have been rightly invoked in this case and in these circumstances the order dated 21.8.1998 stands set aside and directions are given to the first Appellate Court to readmit the appeal to its original number and after summoning the records of the trial Court to dispose of the same after hearing both the parties, within three months from the receipt of the copy of the order. The first Appellate Court shall allow the defendants to place on record only the certified copy of the judgment and decree of the previous suit if it has been confirmed. It is hereby clarified that the petitioner-plaintiff shall always be permitted to challenge the finding of the trial Court on issue No. 2. The first Appellate Court shall allow the defendants to place on record only the certified copy of the judgment and decree of the previous suit if it has been confirmed. It is hereby clarified that the petitioner-plaintiff shall always be permitted to challenge the finding of the trial Court on issue No. 2. Parties through their counsel are directed to appear before the first Appellate Court on 28.3.2001. Order accordingly.