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2003 DIGILAW 228 (HP)

KAMLESH KUMAR v. NAND KISHORE

2003-08-13

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J.—This revision under Section 115 of the Code of Civil Procedure has been filed by the petitioners against the order dated 10.12.2001, passed by the learned Additional District Judge, Sirmaur District, at Nahan, in CMA No. 54-N/6/2001 in Civil Appeal No. 44-N/13/2001/ 2000. By means of impugned order, application under Order 41 Rule 27 of the Code of Civil Procedure filed by the respondent has been allowed. 2. With a view to properly understand and appreciate the submissions urged on behalf of the parties at the time of hearing of this revision petition, facts giving rise to the appeal wherein impugned order was passed need to be briefly noted. 3. Admittedly respondent (hereinafter referred to as the plaintiff), filed a suit for declaration with a consequential relief of permanent injunction. According to him, landed property, as detailed in the plaint, was ancestral Hindu Joint Family/coparcenary property of the respondent as well as of Kamlesh Kumar, Parmod Kumar, Sahib Singh and Om Parkash. It may be noticed that in this suit respondent was claiming himself to be the son of Mohinder Singh from his first wife whereas besides the four sons of Mohinder Singh, his widow as well as daughters were also added as defendants. Plaintiff claimed to be the son of deceased Mohinder Singh from his first wife, whereas defendants, who were arrayed as defendants, were the sons, daughters and widow, from his second wife. Whether this position is correct or not, cannot be gone into in this revision, as such no opinion is being expressed on this aspect. Number of other pleas were raised in the plaint. When put to notice, petitioners/defendants contested and resisted the claim of the plaintiff by filing the written statement. 4. At the time of hearing of this revision great emphasis was laid by learned Senior Counsel, that plaintiff had nothing to do with late Shri Mohinder Singh and his status as son of the deceased was specifically questioned. Again this aspect of the case is not being touched at all in this revision petition. After the parties had filed their pleadings, trial Court framed the following issues: 1. Whether the suit property is the Hindu ancestral coparcenary undivided property, as alleged? OPP 2. Whether the Will dated 8.3.1990 is illegal, manipulated and suspicion document, as alleged? OPP 3. Again this aspect of the case is not being touched at all in this revision petition. After the parties had filed their pleadings, trial Court framed the following issues: 1. Whether the suit property is the Hindu ancestral coparcenary undivided property, as alleged? OPP 2. Whether the Will dated 8.3.1990 is illegal, manipulated and suspicion document, as alleged? OPP 3. Whether the plaintiff is a co-owner in joint possession on the basis of coparcenary as well as succession to the extent of 11/60 shares? OPP 4. Whether the plaintiff is entitled for relief of permanent prohibitory injunction, as prayed for? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no locus-standi to file the suit? OPD 6 (a). Whether the legal and valid Will was executed by Shri Mohinder Singh on March 3, 1990? OPD 7. Relief. 5. Record of the trial Court shows that on 28.6.2000 the case was listed for evidence of the plaintiff. Following statement was made on this date: "Stated that only official witness and documents are to be produced in evidence in affirmative except issue No. 2." 6. Again when the case came up before the trial Court on 11,7.2000 one witness was examined on this date and another on 1.8.2000. Then on 1.8.2000 evidence of the plaintiff was closed when again following statement was made: "I close the plaintiffs evidence in affirmative except issue No. 2 and tender document Ext. PX (and the Hindi translation)." 7. Thereafter case was adjourned to 21.8.2000 for evidence of the petitioners. Statement was made by their counsel on this date that he did not want to lead any evidence on behalf of his clients. In the face of this statement, case was adjourned for final heading. Trial Court after considering the respective submissions dismissed the suit. 8. Dis-satisfied with the judgment passed by the learned trial Court when appeal was pending before the learned District Judge below, an application under Order XLI Rule 27 of the Code of Civil Procedure was filed by the respondent. For ready reference, contents of this application are being extracted hereinbelow :— "Application under Order 41 Rule 27 read with Section 151 C.P.C. for adducing additional evidence. Respectfully Sheweth:— 1. That the above titled appeal is fixed for today. 2. For ready reference, contents of this application are being extracted hereinbelow :— "Application under Order 41 Rule 27 read with Section 151 C.P.C. for adducing additional evidence. Respectfully Sheweth:— 1. That the above titled appeal is fixed for today. 2. That the applicant-appellant had preferred a declaratory suit for getting him declared as one of the co-owner in joint possession alongwith respondents-defendants on the basis of succession of their late predecessor Shri Mohinder Singh alias Kaka. Execution and validity of the impugned registered WILL deed dated 8.3.1990 was assailed also being illegal, manipulated and suspicious even in case the execution has proved. 3. That the respondents-defendants denied the relationship of the applicant with them because as per them the applicant was not the son of late Shri Mohinder Singh. Regarding WILL they submitted that they never claimed the suit property on its basis. They also alleged non maintainability of the suit being the appellant not in possession and also pleaded no locus-standi being not the son of Shri Mohinder Singh their predecessor. 4. That no specific issue was framed separately regarding proof of relationship. However, respondents did not prefer any evidence in support of issues No. 5, 6 and 6-A the burden of which to prove was on them. 5. That the applicant preferred cogent, convincing and above board evidence in form of attested extracts of old public and judicial record in support of issues No. 1, 3 and 4 to prove his relationship with Shri Mohinder Singh and also to prove ancestral coparcenery nature of the suit property. He reserved his right to produce evidence in support of issue No. 2 so as to produce the same alongwith other evidence in rebuttal of main issues No. 5, 6 and 6-A which were to be proved by the respondents. 6. That under a bona fide belief it was considered that at the first stage sufficient, cogent and convincing evidence to prove relationship has been produced and that oral evidence will be and could have been tendered at the second stage of rebuttal evidence. The other oral evidence including the applicants deposition was kept reserved. 6. That under a bona fide belief it was considered that at the first stage sufficient, cogent and convincing evidence to prove relationship has been produced and that oral evidence will be and could have been tendered at the second stage of rebuttal evidence. The other oral evidence including the applicants deposition was kept reserved. However, on one hand the respondents for the reasons best known to them did not prefer any evidence in support of their material issues, while on the other hand the learned trial Court did not allow the production of either rebuttal evidence or the reserved evidence in support of issue No. 2, rather closed the evidence of the applicant by the order of the Court, but has drawn adverse inference against the applicant and thrown his entire case only on this ground. Thus, the learned trial Court has deprived the applicant of an opportunity for tendering the evidence including the oral testimony of the applicant. Also due to inadvertence the applicant has failed to exhibit the attested copy of mutation No. 120 dated 15.7.1999 already produced on record which is material to show that his claimed relationship also stands admitted by the respondents. Since the said mutation is entered at the instance of respondent No. 2. 7. That in the interest of justice and in the circumstances above stated it is prayed that the following additional evidence be kindly allowed to be produced by the applicant, by the production of which no injustice will be caused to the respondents and which will facilitate this Honble Court to completely and effectually pronounce the judgment :— (a.) Plaintiff-appellant Nand Kishore. (b.) Shri Chuchar Singh Lambardar S/o Shri Budh Singh Village, Thana Karoga, Teh. Nahan. Attested copy of mutation No. 120 dated 15.7.1999. Affidavit is attached. Applicant Sd/- Through Counsel Sd/-" This application is supported with the affidavit of the respondent. After receiving reply from the petitioner and having heard learned Counsel for the parties, it has been allowed. Hence, this revision. 9. When arguments commenced in this revision Shri Kuthiala, learned Counsel for the plaintiff submitted that this petition is not maintainable in view of the amended provision of Section 115 of the Code of Civil Procedure having come into force w.e.f. 1.7.2002. He further submitted that there is no jurisdictional error or otherwise committed by the appellate Court below while passing the impugned order. He further submitted that there is no jurisdictional error or otherwise committed by the appellate Court below while passing the impugned order. With a view to support his this submission he referred to few precedents. Thus, he urged for accepting this preliminary objection and dismissal of the revision petition. 10. On the other hand, learned Senior Counsel for the petitioners submitted that accepting everything against his clients and even then thereafter when the present case is examined it is quite obvious that the impugned order is not only illegal as well as contrary to law, but on the face of it is perverse and in no case even on the touchstone of the decision relied upon by Shri Kuthiala cant be sustained. According to him, impugned order is self-contradictory and mutually destructive. Therefore, it needs to be set aside. Alternatively, Shri Kanwar submitted that the prayer regarding maintainability on behalf of the plaintiff even if accepted, still the order having come to the notice of this Court, therefore, with a view to keep the learned Court below within the bounds of its limits, this is a fit case where this court should exercise its jurisdiction under Article 227 of the Constitution of India. 11. Before dealing with the objection regarding maintainability of this petition it may be observed that as per the provisions of Order 41 Rule 27 of the Code of Civil Procedure additional evidence can be allowed by appellate Court in the following situations, namely:— (a) When the Courts from whose decree the appeal is preferred, has refused to admit the evidence which ought to have been admitted; or (b) That the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence as not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed; or (c) The appellate Court requires any document to be produced or any witness to be examined so as to enable it to pronounce the judgment or for any other substantial cause. 11. It is only then that the Court would allow such an application. So far first two situations above are concerned, learned Counsel for the respondent fairly states that those do not arise in the facts and circumstances of this case. 12. 11. It is only then that the Court would allow such an application. So far first two situations above are concerned, learned Counsel for the respondent fairly states that those do not arise in the facts and circumstances of this case. 12. He, however, added that for adjudicating the disputes between the parties and setting those at rest for all times to come, the documentary as well as oral evidence intended to be produced by way of additional evidence would certainly be required by the appellate Court below. Thus, his clients case is covered by the 3rd situation (supra). 13. Ordinarily this plea should have been upheld. However, for reasons to be recorded hereinafter in the facts and circumstances of this case, third situation (supra) also does not at all arise. Thus learned appellate Court below has gravely erred in allowing the application for leading of additional evidence. It is by now well settled that provisions of Order XLI Rule 27 of the Code of Civil Procedure, are meant for advancing the cause of justice between the parties. It is neither meant to help a sleeping litigant, nor to fill in any lacuna left in the case of either of the parties like plaintiff in the present case. 14. When a reference is made to the impugned order, in its paragraph-12 it has been specifically noted by the learned appellate Court below that a serious lacuna has crept in the evidence. But he fell into grave error when he further observed that "It is fairly settled that it is only a lacuna in the evidence that empowers the Court to admit additional evidence. In view of the lacuna that crept in evidence because of non-examination of the plaintiff, this Court decidedly finds itself unable to pronounce judgment satisfactory to its mind." How these observations of the Court below could be synchronized with record of the trial Court, as well as with the facts existing on the trial Court file, learned Counsel is not able to satisfy this Court. A plain reading of the aforesaid observations of the Court below clearly suggests that because of creeping in of the lacuna that the Court found itself incapable to pronounce the judgment and not otherwise. 15. A perusal of the application extracted hereinabove filed by the plaintiff under Order XLI Rule 27 CPC also makes the dismal reading. A plain reading of the aforesaid observations of the Court below clearly suggests that because of creeping in of the lacuna that the Court found itself incapable to pronounce the judgment and not otherwise. 15. A perusal of the application extracted hereinabove filed by the plaintiff under Order XLI Rule 27 CPC also makes the dismal reading. On first reading of the application, it gives an impression that it was the trial Court which closed the evidence. In law, as well as in the facts and circumstances of this case, learned Counsel for the parties were not at variance so far issues No.l to 4 are concerned, onus thereof was on the plaintiff. He examined two witnesses and produced document and then closed plaintiffs evidence during trial of the suit. In fact what the learned Counsel wanted to convey, is that the plaintiffs evidence in affirmative is closed except issue No.2 on 1.8.2000. To my mind this does not make any sense. So far issue 6-A (supra) is concerned, learned Counsel at the time of hearing of this revision petition submitted that he has instructions to say that this is not pressed by his client in view of issue No. 2, on which no evidence was led by the plaintiff. 16. In view of the aforesaid discussion, I find that the order impugned in this revision petition is fairly and squarely covered under Section 115 CPC. Because the appellate Court below while passing the impugned order has failed to exercise jurisdiction vested in it by law and in passing the same it has exercised the same illegality as well as with material irregularity. 17. It may also be appropriate to observe that in the circumstances, as well as on the facts of this case and particularly after the appellate Court below having come to the conclusion, that lacuna had crept in the evidence and it is because of this lacuna that empowers the Court to admit additional evidence, in my considered view, no case is made out so as to uphold the latter observation so as to enable the appellate Court by allowing the application to lead additional evidence to pronounce its judgment. 18. No other point is urged. 19. In view of the aforesaid discussion, this revision petition deserves to be allowed and it is ordered accordingly. 18. No other point is urged. 19. In view of the aforesaid discussion, this revision petition deserves to be allowed and it is ordered accordingly. The matter was taken up for final hearing on the joint request of the learned Counsel for the parties and then finally disposed of after being formally admitted. Costs on the parties. 20. Record of the Courts below is here. Registry is directed to transmit the same, so as to reach the learned appellate Court below by or before 20.9.2003, when parties through their learned Counsel are directed to appear in said Court. It is made clear that learned appellate Court below will not issue any fresh notice to the parties as the date is fixed by this Court, even if the Presiding Officer does not hold the Court on this date, it is for the parties to get a further date from the Court staff. CMP No. 106 of 2002 : 21. No order in view of the disposal of the main matter. Interim order, if any, shall stand vacated forthwith.