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2014 DIGILAW 888 (PNJ)

Manmohan Singh v. Davinder Kaur

2014-05-20

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT : Bharat Bhushan Parsoon, J. 1. Vide this civil revision petition preferred under Article 227 of the Constitution of India, order dated 12.2.2014 (Annexure P-9) passed by the Civil Judge (Junior Division), Jalandhar whereby application of the petitioner-defendant for leading additional evidence was dismissed with costs of Rs. 1,000/- is under challenge. Even earlier to the impugned order, application for leading additional evidence preferred by the petitioner-defendant having been dismissed by the lower court was challenged in a similar fashion in this Court wherein vide order of 16.8.2013 accepting plea of the petitioner-defendant that the application resulting in order of 16.4.2013 was not happily drafted as important facts had remained impleaded, had allowed the petitioner-defendant to move a proper application by stating correct position before the lower court. 2. When claim of the petitioner-defendant is that registered Will of 9.5.1994 in his favour needs proof for which he is required to examine Swaran Singh witness to prove signatures of the testator Smt. Haripal Kaur on the Will, stand of the respondent-plaintiff per contra is that relevant witnesses of the Will have already been examined by the petitioner-defendant and this repeat exercise by making application for additional evidence, is nothing but a delaying tactic. 3. Hearing has been provided to the counsel for the parties while going through the paper book. 4. The respondent-plaintiff had filed a suit for declaration claiming herself to be owner in possession of the land on the basis of inheritance. Repudiating such claim, the petitioner- defendant has set up a case of testamentary succession propounding Will dated 9.5.1994 from owner-testator Smt. Haripal Kaur. Concedingly, attesting witness Devender Singh has expired whereas another attesting witness Lamberdar Ajit Singh has left India to permanently settle in New Zealand. The petitioner-defendant has already examined Mohinder Singh, real brother of attesting witness Ajit Singh to prove his signatures on the Will. Similarly, Kulbir Singh, brother of Devinder Singh yet another attesting witness (since deceased) has also been examined by the petitioner-defendant. It is not disputed that the scribe of the Will has also settled abroad and the Sub-Registrar who registered the said Will, is also no more. 5. The petitioner-defendant now wants to examine yet another witness Swaran Singh by way of additional evidence to identify the signatures of executant testator Smt. Haripal Kaur of the stated Will. It is not disputed that the scribe of the Will has also settled abroad and the Sub-Registrar who registered the said Will, is also no more. 5. The petitioner-defendant now wants to examine yet another witness Swaran Singh by way of additional evidence to identify the signatures of executant testator Smt. Haripal Kaur of the stated Will. When questioned as to why Swaran Singh sought to be examined in additional evidence was not examined earlier when other two witnesses to prove signatures of the attesting witnesses. Counsel for the petitioner-defendant has fairly conceded that counsel for the defendant in the lower court at that time had omitted to do so but has urged that being an important witness as he is to prove signatures of the testator, the petitioner-defendant cannot afford to proceed with the suit further, leaving this witness unexamined. 6. Counsel for the respondent-plaintiff has urged that provision for leading additional evidence i.e. Order XVIII Rule 17-A CPC no more exists on the statute book and even otherwise, arguments in the suit had already been advanced for rendering the judgment finally and thus, there is no stage of leading any evidence further by the petitioner- defendant. It is claimed that neither this evidence is necessary for adjudication of the matter in controversy between the parties nor the move of the petitioner-defendant is genuine and bona-fide and rather, clearly smacks of a ploy to delay and dilate the adjudication of the suit which is pending since 7.11.2008 (Annexure P-1). 7. No doubt, provision of Order XVIII Rule 17-A CPC meant for production of evidence not previously known or which could not be produced despite due diligence, hitherto existing in the Code of Civil Procedure, 1908 has been repealed by the Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 1.7.2002, but the courts have not been rendered powerless to allow reception of evidence when it is required to assist it in rendering justice or in a bid to stop abuse of the process of the court. In addition, there may be circumstances satisfying the court that non-production earlier was for valid and sufficient reasons but the evidence being necessary for complete adjudication of the matter needs to be allowed in the interest of justice. In addition, there may be circumstances satisfying the court that non-production earlier was for valid and sufficient reasons but the evidence being necessary for complete adjudication of the matter needs to be allowed in the interest of justice. At the same time, if the application for leading additional evidence is found to be frivolous or a device to delay and dilate the proceedings, it is to be rejected with exemplary costs apart from ordering prosecution if it involves fabrication of evidence. In this context, reference may be made to K.K. Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275 . 8. Now the question posing for answer is as to whether evidence sought to be produced additionally is required by the court to effectively adjudicate the matter in litigation or request for production of such evidence is mischievous or frivolous or is a device to protract the proceedings before the court? 9. Concedingly, one attesting witness as also the Sub-Registrar (who registered the Will) are no more. Two attesting witnesses have left India and are settled abroad. Will dated 9.5.1994 is the foundation of the case of the petitioner-defendant. In these peculiar circumstances, the petitioner-defendant is left with no option but inter-alia to follow provisions of Section 69 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act"). For convenience, the said provision is appended as below: "69. Proof where no attesting witness found-If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." 10. No doubt, two witnesses to prove attestation of the Will by the two attesting witnesses have been examined by the petitioner-defendant but signatures of the executant of the Will is also to be proved. Swaran Singh is sought to be examined by the petitioner-defendant to prove signatures of the testator of the stated Will. This witness is thus, necessary for complete and effective adjudication. Sequelly, the request is neither frivolous nor mala-fide. 11. Plea of the respondent-plaintiff, is that the arguments have already been advanced and there is no stage now to lead evidence. This plea again is not tenable. This witness is thus, necessary for complete and effective adjudication. Sequelly, the request is neither frivolous nor mala-fide. 11. Plea of the respondent-plaintiff, is that the arguments have already been advanced and there is no stage now to lead evidence. This plea again is not tenable. Arguments were in progress that too in another court, when earlier application for leading additional evidence was filed and observing this fact vide order of 16.4.2013 was dismissed. This order was challenged in this Court when vide order dated 16.8.2013 of this Court, the petitioner- defendant had been allowed to make fresh application for additional evidence with better particulars before the court below. The civil suit is no more pending in the same court. Proceedings are being conducted before another court. Thus, arguments in any case have to be addressed afresh. 12. Even otherwise, when evidence is essential, there is no bar qua its reception at any stage even if the stage is of conclusion of arguments. In Charon Singh v. Ajit Singh, 1999 (Suppl.) Civil Court Cases 458 (P&H) the proposition as to whether the court becomes functus officio to interfere in an application for additional evidence once the arguments in a case have been heard was discussed and answered, relevant portion whereof for ready reference is appended as below: "3. Firstly, I would deal with the second contention raised on behalf of the petitioner. It cannot be said as a proposition of law that once the arguments in a case have been heard, the Court is functus officio to interfere in an application for additional evidence. This contention of the learned counsel for the petitioner, in fact, need not detain me any further because this question was discussed and dealt with in some length by this Court in the case of Chandgi Vs. Mehar Chand and Others, AIR 1998 P&H 197 wherein the Court held as under:- "The judgment is a recognised stage of proceedings in a suit. The legal connotation of judgment is the declaration of final determination of rights of the parties in the matter before the Court. Even in common parlance the expression judgment is understood to put an end at least at some stage to the lis between the parties. The legal connotation of judgment is the declaration of final determination of rights of the parties in the matter before the Court. Even in common parlance the expression judgment is understood to put an end at least at some stage to the lis between the parties. Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when me Court is functus officio of the case before it. No hearing is contemplated under the provisions of the Code between the stage of hearing and reserving the case for order and pronouncement of judgment, but still these two are the independent stages of the proceedings in a suit and hence the parry would have a right to file an application for leading additional evidence prior to the pronouncement of the judgment under the provisions of Order 18, Rule 17-A of the Code." In other words, if the expression hearing of suit and stage of suit are treated to be synonymous then the necessary result is that either of the expression used by the legislature is redundant, ineffective and un-meaningful, As observed by Hon'ble the Chief Justice Patanjali Shasty in the case of Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, AIR 1952 SC 369 , it is not a sound principle of construction to brush aside word in a statute as being inapposite surplusage, if they can have appropriate application on circumstances conceivably within the contemplation of the statute. On the application of the well settled principles of law governing the subject, I find it very difficult to hold that the judgment is not a recognised stage of the proceedings in a suit. Section 2(a) of the Code defines the judgment as statement given by the judge of the grounds of decree and order. The legal connotation of judgment is the declaration or final determination of rights of the parties in the matter before the Court. Section 2(a) of the Code defines the judgment as statement given by the judge of the grounds of decree and order. The legal connotation of judgment is the declaration or final determination of rights of the parties in the matter before the Court. Even in common parlance the expression judgment is understood to put an end at least at some stage to the lis between the parties Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when the Court is functus officio of the case before it." 13. It may be mentioned that though provisions of Order XVIII Rule 17-A CPC no more exist on the statute book but the adjudication that till pronouncement of the judgment, the court does not become functus officio undisputedly remains. More recently, this aspect has been dealt with in Narinder Kumar Vs. Shri Sat Narayan Mandir and Another, (2011) 3 RCR (Civil) 87 wherein observations of a coordinate Bench of this Court are as below: "However, the question which is to be decided by this Court is about the jurisdiction of the learned Rent Controller as to whether he can allow or disallow the application on the ground of delay. In this regard, the consistent view of this Court is that additional evidence can be allowed even at the stage of argument i.e. till the Court becomes functus officio, meaning thereby till the Court signs the judgment, the application can be entertained." 14. In 2011 (2) Civil Court Cases 823 (ibid) the Hon'ble Apex Court had distinctly clarified this proposition as under: "11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not-previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a fate stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. 12. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose. 13. The learned counsel for respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments." 15. Since it has already been found that the evidence sought to be produced by the petitioner-defendant is important for adjudication of the matter in controversy, setting aside the impugned order, this petition is allowed on payment of costs of Rs. 10,000/-. To avoid delay, if any, to be caused, the lower court is directed to complete the evidence sought to be led by the petitioner-defendant within a week from receipt of certified copy of this order and to decide the suit within 15 days thereafter. However, the petitioner- defendant would produce witness Swaran Singh on his own responsibility i.e. without seeking any assistance from the lower court. Nothing observed above shall have any bearing on the merits of the suit.