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2007 DIGILAW 1345 (PNJ)

Jeeto @ Manjit Kaur v. Union of India

2007-07-17

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This revision petition has been filed to challenge the order dated 6.11.2006 passed by the Additional Civil Judge (Sr. Divn.), Gurdaspur, vide which the application moved by the petitioner under Order 18, Rule 17-A read with Section 151 of the Code of Civil Procedure for adducing additional evidence has been ordered to be dismissed. 2. The petitioner filed a suit for declaration to the effect that she was legally wedded to late Shri Wazir Singh and being legal heir of the deceased was entitled to medical pension of her late husband. A prayer was made for mandatory injunction for transfer of pension of the petitioners husband in the name of the petitioner and interest @ 12% per annum was also claimed. Further injunction was prayed restraining defendant No. 4 not to release pension to any one else except the petitioner. 3. In the said suit, the petitioner moved an application to lead additional evidence to prove on record the petition moved by her under Section 9 of the Hindu Marriage Act as well as the order passed thereon. It was claimed that she being an illiterate lady was not aware of the said fact and immediately on coming to know about the same, the present application was moved. 4. The application was contested on the plea that the application had been moved to delay the proceedings. The averments made on merit were denied to be false. It was also claimed that the said evidence was not essential for the adjudication of the case. 5. The learned trial Court was pleased to dismiss the application by observing that the fact of the petition under Section 9 of the Hindu Marriage Act having been filed was within the knowledge of the petitioner at the time when she was leading the evidence and further by taking note of the fact that the suit was old, it was held by the trial Court that the application was filed at a belated stage. 6. Mr. Vipin Mahajan, learned counsel appearing on behalf of the petitioner, has challenged the order primarily on the ground that the evidence sought to be produced was a certified copy of the petition and the order passed by the Court thereon. It was further contended that the evidence sought to be produced was very material for just and proper adjudication of the case. It was further contended that the evidence sought to be produced was very material for just and proper adjudication of the case. In support of his contention that the order passed by the learned trial Court cannot be sustained, he placed reliance on the judgment of this Court in the case of Chattar Singh v. Mehar Singh, 2002(1) Civil Court Cases 577 (P&H) wherein it has been held as under :- "3. After hearing learned counsel for the petitioner, this Court feels that the order under challenge is perfectly justified and the trial Court has given sufficient reason for allowing the applications of the respondent to bring on record two documents by way additional evidence. The contention of Shri Bansal that the case was at the fag end and as such, these applications were required to be dismissed, is not tenable. The evidence which otherwise is material cannot be shut only due to some delay in moving the application on the part of the respondent. The language of Order 18 Rule 17-A of the Code does not define the stage at which such an application can be moved. It only says that where party after due diligence was not able to produce evidence the same can be produced at a later state subject to such terms and conditions as the Court may consider just and proper. This view is fully supported by the judgment of this Court in Hazara Singh and another v. Bachan Singh and others, 1988 PLJ 163 (P&H). The argument of Shri Bansal that the case does not fall within the provisions of Order 18 Rule 17-A is also misconceived. The trial Court has clearly opined that a complete copy of the jamabandi Ex. P-6 and the copy of the application which was moved by the petitioner for partition of the land are the documents which are necessary for proper and effective adjudication of the matter under challenge and the evidence sought to be produced goes to the root of the case. In view of this no interference can be made in the order passed. Otherwise also both the documents are such that there is no chance of any fabrication of these documents, as such, by allowing these documents to be placed on record, no prejudice will be caused to the petitioner. In view of this no interference can be made in the order passed. Otherwise also both the documents are such that there is no chance of any fabrication of these documents, as such, by allowing these documents to be placed on record, no prejudice will be caused to the petitioner. Shri Arvind Bansal lastly contended that in view of the amendment in Section 15 of the Punjab Pre- emption Act (applicable to Haryana) virtually the suit has become redundant and this revision petition be allowed keeping in view the said fact. He has placed his reliance on a judgment of the Honble Supreme Court in Shyam Sunder and another v. Ram Kumar and another, Judgments Today 2001(6) SC 94 to support his contention. Be that as it may, this aspect cannot be looked into at this stage, however, the trial Court is advised to see the effect of the above said amendment and judgment passed by the Honble Supreme Court before proceeding further in the pending suit." 7. The contention of the learned counsel for the petitioner was that evidence sought to be produced goes to the root of the case and the documents sought to be produced were such that there were no chance of fabrication. 8. Learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Surinder Kumar v. Prem Lata, 1997(2) Civil Court Cases 512 to contend that the trial Court erred in law in rejecting the application on technicalities that the documents sought to be produced were such which were beyond fabrication. Para 4 of this judgment reads as under :- "After hearing learned counsel for the parties and perusing the record, I am of the opinion that this revision petition deserves to succeed. The plaintiff moved an application for production of additional evidence within a short span of closing his evidence though after the conclusion of the evidence by the defendants. Plaintiff relied upon these documents in the list of documents sought to be produced in the suit at the time of institution of the suit. He also (sic) for producing the said documents, but he could not produce the same perhaps due to inadvertence or for some other cause. The documents sought to be produced by way of additional evidence are the part of public record and there is no chance of their being fabricated. He also (sic) for producing the said documents, but he could not produce the same perhaps due to inadvertence or for some other cause. The documents sought to be produced by way of additional evidence are the part of public record and there is no chance of their being fabricated. The documents are also more than 30 years old. Not only these documents if permitted to be produced on record will enable the Court to determine the real controversy between the parties and to pronounce a satisfactory judgment. There is no chance of these documents being fabricated by the plaintiff on a later date and the defendants for the late production of these documents could be compensated by payment of costs. It is true that these documents cannot be said to be such, which were not in the knowledge of the plaintiff or he could not produce the same after due diligence, but additional evidence in a given case can be permitted to be produced on account of any other sufficient cause or in order to determine the controversy between the parties more effectively and in order to render a satisfactory judgment. The trial Court while declining the prayer of the plaintiff for the production of additional evidence only observed that he did not act fairly and has not exercised due diligence in concluding his evidence and the documents cannot be permitted to be produced by way of additional evidence. In my opinion the approach of trial Court in the facts of this case was too technical. Having regard to the fact that the documents sought to be produced will certainly help in deciding the actual controversy between the parties and that the documents form part of a public record and are beyond fabrication, the production of such evidence should not have been declined on technicalities." 9. Mr. Abhishek Arora, learned counsel appearing on behalf of respondent No. 5 contended that the order passed by the learned trial Court was in exercise of the discretion vested in it and, therefore, was not open to challenge in the revision petition. His further contention was that respondent No. 6 in fact is widow of the deceased and there was no divorce granted in favour of Wazir Singh. 10. After hearing learned counsel for the parties I find force in the contentions raised by the learned counsel for the petitioner. 11. His further contention was that respondent No. 6 in fact is widow of the deceased and there was no divorce granted in favour of Wazir Singh. 10. After hearing learned counsel for the parties I find force in the contentions raised by the learned counsel for the petitioner. 11. The learned trial Court was not correct in dismissing the application merely on the ground of delay when the evidence sought to be produced was essential for the just and proper adjudication of the case as the relationship of the parties was in dispute. As regards the contention of the learned counsel for respondent No. 5, the same cannot be the basis for rejection of the present revision petition as the parties have to prove their case before the trial Court. Consequently, this revision petition is allowed, the impugned order is set aside and the application moved by the petitioner for additional evidence is allowed. However, it shall be subject to payment of Rs. 2,000/- as costs. Petition allowed.