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2009 DIGILAW 116 (HP)

Chailo Devi v. Prem Singh

2009-03-06

KULDIP SINGH

body2009
JUDGMENT : Kuldip Singh, J. Hari Lal defendant No.1 had filed this appeal against the judgment, decree dated 30.4.1998 passed by learned Addl. District Judge (1) Kangra at Dharamshala in Civil Appeal No.75-D/1997, reversing judgment, decree dated 14.5.1997 passed by learned Sub Judge Ist Class (I) Dharamshala in Civil Suit No.302/93. Hari Lal died during the pendency of the appeal and his legal representatives were brought on record. 2. The facts, in brief, are that Prem Singh respondent No.1 had filed suit for declaration to the effect that he is son of late Bishan Dass and accordingly is owner of share of 25/232 share of land more specifically detailed in the plaint. He alleged that the suit land was previously owned by Bishan Dass and mutation of inheritance No. 81 dated 10.12.1979 was sanctioned in the name of Hari Lal on the basis of forged Will. The respondent No.1 has alleged that he is son of deceased Bishan Dass from his first wife Smt. Viyasa Devi which fact has been recorded in the divorce deed executed by Bishan Dass on 1.1.1996. Bishan Dass never executed any Will in favour of Hari Lal. It has been alleged that Hari Lal had sold land to the extent of 0-04-34 hect. to respondent No.2 and mutation No.261 to this effect has been sanctioned in favour of respondent No.2. This sale is not binding on respondent No.1. 3. The suit was contested by Hari Lal by filing written statement and he took preliminary objections of maintainability, locus standi, lack of cause of action. On merits he denied the case of respondent No.1 and has submitted that respondent No.1 is not the son of late Bishan Dass father of Hari Lal. He pleaded that late Bishan Dass had executed a Will in his favour and mutation to this effect has already been sanctioned on the basis of registered Will. He defended the sale made by him in favour of respondent No.2. The respondent No.1 filed replication and reiterated the stand which he has taken in the plaint and denied the case set up in the written statement. 4. The following issues were framed by the learned trial Court:- 1. Whether the plaintiff being the son of late Bishan Dass is entitled to inherit the half share of the suit land, as alleged? OPP 2. 4. The following issues were framed by the learned trial Court:- 1. Whether the plaintiff being the son of late Bishan Dass is entitled to inherit the half share of the suit land, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled to the decree for possession, as alleged? OPP 3. Whether the suit is not maintainable ? OPD 4. Whether the plaintiff has no locus standi to sue? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether Bishan Dass has executed a valid will in favour of defendant No.1, as alleged? OPD 7. Relief. 5. The issues No.1 and 2 were answered in negative and issues No.3 to 6 in affirmative. The learned Sub Judge dismissed the suit on 14.5.1997 but in appeal learned lower Appellate Court while setting aside the judgment decree dated 14.5.1997 has held on 30.4.1998 that respondent No.1 is the son of Bishan Dass who had not executed any Will in favour of Hari Lal. As noticed above Hari Lal filed the second appeal against the judgment, decree dated 30.4.1998. In the appeal CMP No.486 of 1998 has been filed under Order 41, Rule 27 CPC for additional evidence to prove registered Will dated 15.11.1977 of Bishan Dass in favour of Hari Lal. 6. The appeal has been admitted on the following substantial questions of law:- 1. Whether the learned First Appellate Judge was in error in rejecting Ex.D-1 as also the school leaving certificate from consideration in arriving at a conclusion to reverse the judgment and decree or the learned trial Judge? 2. Whether the learned First Appellate Judge was right in granting half share in favour of the plaintiff, as it has been done ignoring the other heirs of Bishan Dass? 7. I have heard Mr. R.K. Sharma, learned counsel for the appellant and Mr. Ajay Sharma, learned counsel for respondent No.1 and gone through the record. On behalf of the appellants it has been submitted that CMP No.486 of 1998 for additional evidence for placing and proving on record registered Will dated 15.11.1977 of Bishan Dass in favour of late Hari Lal may be allowed and thereafter case be remanded to the trial Court for afresh decision. On behalf of the appellants it has been submitted that CMP No.486 of 1998 for additional evidence for placing and proving on record registered Will dated 15.11.1977 of Bishan Dass in favour of late Hari Lal may be allowed and thereafter case be remanded to the trial Court for afresh decision. In the alternative it has been submitted that Bishan Dass had left behind daughters also and in these circumstances respondent No.1 is not entitled to decree of share of the suit property. The daughters are also entitled to inherit the property of Bishan Dass in case this Court comes to the conclusion that respondent No.1 is the son of Bishan Dass which fact is not admitted by the appellants. The learned counsel for the respondent No.1 has submitted that the appellants have failed to make out any case for leading additional evidence to prove alleged Will dated 15.11.1977 of Bishan Dass. The trial Court has specifically framed issue No.6 of Will but Will now sought to be placed and proved by way of additional evidence was never filed in the Court below. The negligence of the appellants, their predecessor and counsel for not placing and proving Will dated 15.11.1977 at the right time is no ground for additional evidence. He has submitted that there is no plea of necessary parties in the written statement filed by the predecessor of appellants. Bishan Dass even if, had left behind daughters in that case also the impugned judgment is binding on parties to the lis and ‘such' daughters are not bound by the impugned judgment. He has prayed for dismissal of additional evidence application as well as appeal. 8. I shall take up first additional evidence application. The sub rule 1 of rule 27 of Order 41 CPC is as follows:- "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. He has prayed for dismissal of additional evidence application as well as appeal. 8. I shall take up first additional evidence application. The sub rule 1 of rule 27 of Order 41 CPC is as follows:- "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was 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 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced , or witness to be examined". 9. It has been submitted by learned counsel for the appellants that suit was defended by their predecessor Hira Lal who was illiterate. He depended on his counsel in the Court below. In the written statement plea of registered Will has been taken. The property involved in the suit is substantial. The Will now sought to be placed and proved on record is dated 15.11.1977 and is registered. There is no question of manufacturing this document now by the appellants. The additional evidence will help the Court in rendering substantial justice between the parties. 10. The additional evidence can be allowed within the parameters laid down in Order 41, Rule 27 , the case must fall in either of the clauses of sub rule 1 of rule 27 and only then additional evidence can be allowed. In K. Venkataramiah v. A. Seetharama Reddy and others AIR 1963 SC 1526 , the Supreme Court has held as follows:- "It is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". In K. Venkataramiah v. A. Seetharama Reddy and others AIR 1963 SC 1526 , the Supreme Court has held as follows:- "It is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R.27 (1) (b) of the Code". 11. In Wadi v. Amilal & Ors. JT 2002 (6) SC 16, while considering clause (b) of sub rule 1 of Order 41 CPC, the Supreme Court has held that invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case. It has been further held that the document in question would throw light on the germane issue and is, therefore, necessary for pronouncing judgment. The board of revenue ought to have admitted the additional evidence under clause (b). It erred in declining to admit that document as additional evidence. 12. In Lachhman Singh v. Hazara Singh (2008) 5 SCC 444 , an application for additional evidence was filed in the High Court to prove mortgaged deed which was registered in the year 1913. On those facts the Supreme Court has held that the jurisdiction of the appellate court is to be exercised not only when Clause (a) or Clause (aa) of sub-rule (1) of Rule 27 Order 41 of the Code is attracted but also when such a document is required by the appellate court itself to pronounce judgment or for any other substantial cause. If what the respondents contended is correct, the suit could be filed within a period of seven years from 1.1.1964 i.e. up to 1.1.1971. As the suit was filed on 30.12.1970, it may be held to be within the prescribed period of limitation. The Supreme Court permitted additional evidence and remitted the matter back to the High Court to take the additional evidence on record either allowing the parties to adduce evidence before it or to prove the said documents by the trial Judge in terms of Order 41, Rule 28 of the Code. 13. The learned counsel for the respondent No.1 has relied K.R. Mohan Reddy v. M/s. Net Work Inc. Rep. Tr. M.D. AIR 2008 SC 579 in support of his contention that it was for the appellants to show that the ingredients of clause (aa) of sub rule 1 of rule 27 of Order 41 is satisfied. The learned counsel for the respondent No.1 has also relied Basayya I. Mathad v. Rudrayya S.Mathad & Ors. AIR 2008 SC 1108 , wherein it has been held that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a) & (aa). The clauses (a) and (aa) of sub rule 1 of rule 27 of Order 41 are not applicable in the present case, however, scope of clause (b) of sub rule 1 of rule 27 of Order 41 is wider. In K.Venkataramiah supra the Supreme Court has held that the appellate court has the power to allow additional evidence for any other substantial cause. In Lachhman Singh supra, the Supreme Court has allowed additional evidence of registered mortgaged deed in second appeal. 14. In the present case Hari Lal predecessor of appellants in the written statement has pleaded execution of registered Will by Bishan Dass in his favour. In the alleged Will reference of daughters of Bishan Dss has also been made. The substantial rights of the parties are involved in the property, therefore, in my opinion in the interest of justice and for just decision of the case, in a satisfactory manner in order to do complete justice between the parties, the additional evidence application deserves to be allowed. The respondent No.1 will get an opportunity to cross-examine the witnesses of appellants and he will also get an opportunity to rebut the evidence. The respondent No.1 will get an opportunity to cross-examine the witnesses of appellants and he will also get an opportunity to rebut the evidence. Therefore, there is no question of any prejudice to the respondent No.1. There is no denial of the fact that appellants have filed the application for additional evidence in this Court and in these circumstances the respondent No.1 is entitled to some compensation. The matter cannot be remanded, as contended by learned counsel for the appellants. 15. In view of the above discussion, CMP No.486 of 1998 is allowed subject to payment of Rs.3000/- cost to be paid by appellants to respondent No.1 before they actually lead additional evidence. In view of the fact that appellants have been permitted to lead additional evidence, the appeal now be fixed for evidence.