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2008 DIGILAW 2166 (PNJ)

Surjit Singh v. Varinder Singh

2008-12-19

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma. J. (Oral) :- The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 15.2.2008 passed by the learned Additional Civil Judge (Sr. Divn.), Ludhiana whereby the application moved by the petitioners to lead additional evidence was ordered to be dismissed. 2. The petitioners filed a suit for partition regarding land measuring 3K-14M on the allegation that the suit land was jointly owned by their predecessor Bhagwant Singh, the predecessor of defendants No.1 to 8, Prem Singh and defendant No.9 Charan Singh. They claimed that they have got 1/4th share in the land in dispute. The defendants No.1 to 8 were owners to the extent of 1/4th share and the remaining ½ share was owned by defendant No.9 Charan Singh. 3. Defendant No.4 supported the case of the plaintiffs. 4. However, defendants No.1 to 8 contested the suit on the allegations that the aforesaid persons and Sham Singh were partners in a firm known as Bhodey Electric Engineering Company, Ahluwalia Street, Miller Ganj, Ludhiana. The property in dispute was acquired by the said firm. Lateran two more persons were inducted as partners in the said firm. Ultimately the said firm was dissolved vide dissolution deed dated 18.5.1966. As per the said dissolution deed the property in question, which was the property of the partnership firm, was given to Prem Singh and Sohan Singh the retiring partners and since then Prem Singh and Sohan Singh remained in possession of the land in dispute as absolute owners thereof. It was also the case set up that Prem Singh expired on 30.10.1983, who is said to have executed a legal and valid Will dated 14.1.1990. bequeathing his moveable and immovable properties in favour of defendant No.1. Thus, defendant No.1 has become owner to the extent of 3/4th share in the land in dispute and that plaintiffs have been left with no right, title or interest in the land in dispute. 5. The issues arising out of the pleadings of the parties were framed whereon both the parties led evidence and the suit was decreed vide judgment and decree dated 18.9.1987 by the learned Sub Judge 1st Class, Ludhiana. 5. The issues arising out of the pleadings of the parties were framed whereon both the parties led evidence and the suit was decreed vide judgment and decree dated 18.9.1987 by the learned Sub Judge 1st Class, Ludhiana. However, an appeal against the said judgment and decree was preferred and the case was remanded by the learned appellate Court vide judgment dated 28.3.2007 with a direction that one Balwant Kaur whose, name was recorded in the revenue record as co-owner, should be impleaded as party to the suit. It was also held by the learned appellate Court that the evidence already produced by the parties shall be read subject to all just exceptions and the parties would be entitled to lead further evidence on appearance of Smt. Balwant Kaur. 6. The application for impleading Smt. Balwant Kaur was allowed. However, she did not appear despite service and was ordered to be proceeded ex parte. Since Smt. Balwant Kaur did not appear, therefore, the case was ordered to be heard and decided afresh. 7. The learned trial Court observed that at one stage the plaintiff tried to examine some witnesses in the case but objection was raised by defendants No.1 to 8 that no fresh evidence was to be recorded in this case as Smt. Balwant Kaur did not appear and matter was to be decided on the basis of the evidence already produced by the parties. The said objection was upheld by the learned trial Court vide order dated 12.1.2006 and the case was posted for rebuttal evidence and arguments. 8. Defendants No.1 to 8 thereafter filed an application for framing of issues in the connected Civil Suit titled Mohan Singh Vs. Charan Singh. The said application was dismissed vide order dated 22.7.2006. The application for additional evidence was also rejected vide same order. 9. Revision petition was filed by defendants No.1 to 8, which was allowed by this Court and directions were issued for passing a fresh order on the application for additional evidence. 10. In, the application for additional evidence the petitioners claimed that after the decision of the case by the learned trial Court on 18.9.1987 some new developments had taken place. In a criminal case arising out of FIR No. 140 dated 23.3.1984 under Section 447, 448, 452, 506, 379. 10. In, the application for additional evidence the petitioners claimed that after the decision of the case by the learned trial Court on 18.9.1987 some new developments had taken place. In a criminal case arising out of FIR No. 140 dated 23.3.1984 under Section 447, 448, 452, 506, 379. 427, 149 IPC registered at Police Station Division No.6, Ludhiana, the statement of Charan Singh defendant No.9 was recorded and during his cross-examination he admitted his signatures on the dissolution deed and a certified copy of the same was got proved. He also admitted his signatures on partnership deed of firm Bhodey Electric Engineering Company and copy of the said partnership deed was also got proved. The petitioners thereafter claimed that they should be allowed to prove the copy of the statement made by Charan Singh, partnership deed, dissolution deed as also certified copy of the judgment dated 25.1.1991 delivered in the said criminal case. 11. It was further claimed that criminal Court made certain observations in the said criminal case which proved the case set up by the defendants. The petitioners claimed that the original partnership and dissolution deeds could not be produced earlier as the same were not in possession of defendants No.1 to 8 and the same came to light only at the time of recording of statement of Charan Singh in the said criminal case. Thus, prayer was made to allow additional evidence as the same was said to be necessary for complete and proper adjudication of the controversy between the parties. 12. The application was contested by the plaintiff-respondents on the plea that application for additional evidence was not maintainable as the evidence of defendants No.1 to 8 was ordered to be closed by order of the Court and, therefore, the application for additional evidence could not be allowed. It was further claimed that no development took place after the decision of the case by the learned criminal Court which could require the production of the additional evidence. It was also denied that the partnership deed or dissolution deed got proved in the criminal proceedings from Charan Singh. The application was also opposed on the ground that the petitioners could not be allowed to fill in lacuna by leading additional evidence. 13. It was also denied that the partnership deed or dissolution deed got proved in the criminal proceedings from Charan Singh. The application was also opposed on the ground that the petitioners could not be allowed to fill in lacuna by leading additional evidence. 13. The learned trial Court observed that the application for additional evidence could not be allowed as the petitioners very well knew that they were required to produce the evidence regarding dissolution deed dated 18.5.1966 through which the property in dispute was given to Prem Singh and Sohan Singh in lieu of their share in the assets of partnership firm. However, they produced photo copy of the said dissolution deed and failed to satisfy the Court by exhibiting the said document. However, the version was disbelieved by the learned trial Court as it was found that the documents were not proved in accordance with law. The Court observed that the factum of original partnership deed and dissolution deed was within the knowledge of the petitioners as they were got produced in the criminal proceedings. But no reasons were given as to why the said file could not be summoned during the course of leading evidence in the suit. Defendants No. 1 to 8 did not chose to examine Charan Singh in the present suit. The Court also observed that the judgment given in the criminal Court was not binding in the Civil Court. The Court observed that though the Court has power to allow additional evidence but the same can be allowed if a ground is made out. The Court further observed that even in the application the petitioners did not seek to produce the original documents but copies which were produced in the criminal Court would also fall within the definition of secondary evidence. The Court observed that by way of present application the petitioners were making an attempt to lead secondary evidence which could have been done when they were leading evidence. The Court also observed that as the evidence of the petitioners was ordered to be closed by the order of the Court they cannot be permitted to lead additional evidence by way of secondary evidence. Thus, dismissed the application. 14. The Court also observed that as the evidence of the petitioners was ordered to be closed by the order of the Court they cannot be permitted to lead additional evidence by way of secondary evidence. Thus, dismissed the application. 14. The rights of the petitioners were, however, protected by observing that in case the petitioners are able to prove the copies of partnership and dissolution deeds the same could be considered at the time of final disposal. 15. Mr. Kanwaljit Singh, Senior counsel appearing on behalf of the petitioners vehemently contended that the petitioners by way of additional evidence wanted to prove on record the certified copies of the documents which were duly exhibited before the criminal Court and were not within the knowledge of the petitioner when they were leading evidence. However, this plea of the learned senior counsel for the petitioners cannot be accepted. The case of the petitioners is based on the partnership and dissolution deeds and it could not be said that the said documents were not within the knowledge of the petitioners especially when the copies thereof were produced on record. The evidence of the petitioners was ordered to be closed by order and that order could not be overcome by leading additional evidence. 16. The learned senior counsel appearing on behalf of the petitioners thereafter by placing reliance on the judgment of this Court in the case of Phool Chand Jain Vs. Smt. Jotri Devi 2002(1) RCR (Civil) 233 contended that the Courts have to do substantial justice and the strict rules of procedure are not to be followed if it is felt that injustice would occasion. There can be no dispute with the proposition of law. However, it may be noticed that the Court could allow additional evidence if it was proved on record that the evidence sought to be brought was not within the knowledge of the party or the evidence came into existence subsequently. In the present case it may be noticed that the evidence sought to be brought on record by way of additional evidence by the petitioners was not such which was not within the knowledge of the petitioners or can be said to have come in existence subsequently. Rather in the present case, the case was based on the said documents. However, the petitioners chose not to lead secondary evidence to prove the said documents. 17. Rather in the present case, the case was based on the said documents. However, the petitioners chose not to lead secondary evidence to prove the said documents. 17. The learned senior counsel for the petitioners thereafter placed reliance on the judgment of this Court in the case of Pawan Kumar Vs. Raj Kumar and others 2007(1) RCR (Civil) 185 to contend that in spite of deletion of Rule 17-A of Order 18 of the CPC the Court has inherent power to allow additional evidence in case it is necessary for just and proper adjudication of the case. This authority relied upon by the learned counsel for the petitioners is also of no help to the petitioners, as in the present case the learned trial Court had already decided the case, the petitioners cannot be allowed to fill in lacuna. 18. The learned counsel for the petitioners thereafter referred to the judgment of this Court in the case of Jeeto @ Smt Manjit Kaur Vs. Union of India 2007(4) RCR (Civil) 408. The learned counsel for the petitioners also relied upon the judgment of this Court in the case of State Bank of India Vs. M/s Plywood Palace and others 2006(3) RCR (Civil) 64 to contend that an opportunity for leading additional evidence could be allowed on payment of costs. However, this judgment is also not relevant to the present case as the application moved by the petitioners was ordered to be dismissed as the evidence was ordered to be closed by order of the Court and the Court, therefore, held that the petitioners could not be allowed to overcome the said order by resorting to additional evidence. Similarly, the judgment of this Court in the case of Jeeto @ Smt. Manjit Kaur Vs. Union of India (supra) is of no help to the petitioners. 19. The learned senior counsel for the petitioners also referred to the judgment of learned lower appellate Court vide which the appeal against the judgment and decree was allowed and the case was remanded for fresh decision. 20. Union of India (supra) is of no help to the petitioners. 19. The learned senior counsel for the petitioners also referred to the judgment of learned lower appellate Court vide which the appeal against the judgment and decree was allowed and the case was remanded for fresh decision. 20. The contention of the learned senior counsel for the petitioners was that the application of the petitioners under Order 41 Rule 27 of the Code of Civil Procedure stood impliedly allowed by the learned lower appellate Court as the said application was dismissed in view of the fact that Court observed that after addition of Smt. Balwant Kaur as party, the parties would be allowed to lead additional evidence. However, this plea cannot be accepted. The dismissal of the application for additional evidence having been rendered infructuous cannot mean that the application stood allowed. The learned lower appellate Court merely observed that in case Smt. Balwant Kaur was impleaded as a party and any evidence was led the petitioners would be allowed to lead additional evidence to rebut the said evidence. It did not mean that the petitioners were allowed to fill in lacuna in their case as it is settled law that additional evidence cannot be allowed to fill in lacuna left by the parties. 21. As already observed above, in the present case the evidence sought to be produced by the petitioners was well within their knowledge when they were leading evidence, therefore, it cannot be said that merely because certain evidence was brought on record before the learned criminal Court would mean that the said evidence came in existence after the passing of the decree by the learned trial Court. Once the evidence of the petitioners was ordered to be closed by order they were rightly not allowed to lead additional evidence to overcome the said order. No merit. Dismissed. ------------------