Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 1057 (PNJ)

Jagdish Parshad v. Surinderjit Kaur Jodhka

2014-07-14

RAKESH KUMAR JAIN

body2014
Judgment Rakesh Kumar Jain, J. This order shall dispose of two revision petitions bearing CR No.254 of 2012 titled as “Jagdish Parshad Vs. Surinderjit Kaur Jodhka and another” [for short ‘Ist petition’] and CR No.2139 of 2012 titled as “Jagdish Parshad Vs. Surinderjit Kaur Jodhka and another” [for short ‘IInd petition’]. The plaintiff has filed both the revision petitions. He filed suit for possession in respect of the property in dispute on the basis of a Will dated 23.3.1984. On the other hand, the case of the defendants is that they are in possession of the property in dispute on the basis of sale deed in their favour and the excess area is in possession of the Municipal Corporation, who was not arrayed as a defendant. On the pleading of the parties, the trial Court framed the issues on 20.9.2007. The plaintiff had also filed application for temporary injunction, which was also taken up by the trial Court when the evidence of the plaintiff had started. The plaintiff, despite availing various opportunities, did not lead evidence and ultimately filed an application on 11.2.2009 under Order 26 Rule 9 of the Code of Civil Procedure, 1908 [for short ‘the CPC’] for appointment of a Local Commissioner for the purpose of demarcation of the property in dispute. The said application was dismissed by the trial Court on 15.10.2011. The plaintiff did not challenge that order and thereafter the case was adjourned many times for the evidence of the plaintiff but no witness was examined despite the fact that cost was also imposed. On 5.12.2011, the plaintiff filed an application under Section 65 of the Indian Evidence Act, 1982 [for short ‘the Act’] to which reply was also filed and the trial Court vide order dated 15.11.2011 dismissed the application. Against that order, Ist petition [CR No.254 of 2012] has been filed. The Court adjourned the case again for leading evidence by the plaintiff in rebuttal, last opportunity was granted and since the petitioner/plaintiff did not conclude his evidence, therefore, his evidence was closed vide order dated 16.3.2012 which has been challenged in IInd petition [CR No.2139 of 2012]. In the Ist petition, learned counsel for the petitioner has submitted that the trial Court has committed an error in not granting permission to lead secondary evidence to prove the certified copy of the Will. In the Ist petition, learned counsel for the petitioner has submitted that the trial Court has committed an error in not granting permission to lead secondary evidence to prove the certified copy of the Will. He has submitted that since the said Will dated 23.3.1984 was lost, therefore, it could be proved by leading secondary evidence as it is an official document coming from the custody of the Registrar. The application filed in this regard dated 3.12.2011 refers to the Will dated 23.3.1984. Learned counsel for the respondents has argued that the said application is totally misconceived and has been dismissed by the Court below, though on the ground that the evidence is sought to be produced after 8 years of the trial but before me it has been argued by learned counsel for the respondents that there is no such Will dated 23.3.1984 as the Will is actually dated 7.4.1981. It is submitted that the date given in the application as well as in the plaint about the Will is 23.3.1984 which is totally incorrect as on that date the Will was opened by the Registrar/Collector as it was deposited with him in terms of Section 42 of the Registration Act, 1908 [for short ‘the Registration Act’]. After hearing both the learned counsel for the parties, I am of the considered opinion that there is no merit in the present revision petition. The consistent case of the plaintiff is that there is a Will in his favour dated 23.3.1984, which is not pleaded in the plaint but tried to be proved in secondary evidence whereas the document (Annexure P2) placed on record by the plaintiff clearly shows that the Will deposited with the Registrar was opened on that date i.e. 23.3.1984 but the actual date of the Will is 7.4.1981. Once, the plaintiff himself is not asking for leading the secondary evidence in respect of the Will dated 7.1.1981 and there is no Will in existence dated 23.3.1984, the permission for leading secondary evidence cannot be granted. Accordingly, the Ist petition is hereby dismissed. Now I will advert to IInd petition directed against the order by which evidence of the plaintiff has been closed. Learned Court below has recorded that the plaintiff has availed as many as 17 opportunities to lead evidence. Accordingly, the Ist petition is hereby dismissed. Now I will advert to IInd petition directed against the order by which evidence of the plaintiff has been closed. Learned Court below has recorded that the plaintiff has availed as many as 17 opportunities to lead evidence. I have found from the zimini orders that the plaintiff is pursuing his litigation at his own speed and choice. He did not lead any evidence for about 78 dates given by the trial Court and filed application under Order 26 Rule 9 of the CPC for appointment of Local Commissioner for the purpose of demarcation of the property in dispute as according to learned counsel for the petitioner, he would have led the evidence only after getting the report of the Local Commissioner showing the extent of encroachment by the respondents. Be that as it may, the order passed by the trial Court dismissing the application for appointment of Local Commissioner was not challenged. If the petitioner was so keen to lead his evidence by appointment of Local Commissioner and demarcation of the property in dispute, he should have challenged the order passed by the trial Court dated 15.10.2011. Further, the case was adjourned again for the evidence of the plaintiff and after 56 dates, he filed another application under Section 65 of the Act. After that application was dismissed, the revision was filed in this Court in which no stay was granted by this Court and the proceedings in the trial Court was allowed to continue. During this interregnum, about 78 dates were given to lead his evidence but despite last opportunity and opportunity with cost, no evidence was led except examining PW2. Learned counsel for the plaintiff has argued that he has to lead only his own evidence and also if the application for secondary evidence is allowed, he has to prove the same by examining the scribe and the witness. Since, I have already dismissed the application for leading secondary evidence, therefore, there is no question of allowing this revision petition. In view thereof, I do not find any merit in the present revision petition [CR No.2139 of 2012] and hence, the same is hereby dismissed.