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2017 DIGILAW 1676 (PNJ)

Saroj v. Charan Singh

2017-08-01

ANITA CHAUDHRY

body2017
JUDGMENT Mrs. Anita Chaudhry, J.:- This revision has been filed by one defendant aggrieved by the dismissal of the application filed by her under Section 151 CPC. She was seeking permission to lead additional evidence. 2. We may straightway proceed to deal with brevity, the case presented before the Court. A suit was filed in May 2006. Issues were framed in May 2007. The plaintiff closed its evidence and thereafter, six adjournments were granted to the defendants to lead their evidence. Their evidence was closed by Court order on 15.02.2010. These facts were disclosed by the counsel representing the petitioner. 3. The suit had been filed by the brothers who had laid challenge to the mutation that was entered with respect to the estate of their father. The defendants impleaded were the mother, sisters and other legal heirs. Defendant nos.2 to 5 filed a separate written statement pleading that the Will was forged. Defendant no.2 claimed that she was a ‘Parda Nasheen’ lady and was residing at village Gochhi in district Jhajjar and in the record her residence was shown to be village Khungai and her lawyer sent a message through a registered letter at that village which was not received by her and she contacted her lawyer in July 2010 and she came to know about status of the case and that her evidence was closed. It was claimed that she came to know that her father Chandgi Ram had filed a suit in 1972 and the plaint, Vakalatnama and the replication of that suit had been thumb marked by the father and a Fingerprint Expert was hired by them who has compared the thumb impressions with the thumb impressions on the disputed Will and they were not of the same person and to decide the controversy it was necessary to examine the Expert. 4. The trial Court dismissed the application and para no.12 of the order reads thus:- “12. Moreover no fact has been brought before the Court to satisfy the conscience of the court that the same were not in the knowledge of the defendant/applicant at the time of producing their evidence and hence they could not have brought the same before the court despite due diligence. Moreover no fact has been brought before the Court to satisfy the conscience of the court that the same were not in the knowledge of the defendant/applicant at the time of producing their evidence and hence they could not have brought the same before the court despite due diligence. Rather the case has been filed on the basis of Will dated 11.5.1973 executed by deceased Chandgi who was father of both the plaintiff and applicant/defendant Saroj and the earlier litigation from where the thumb of deceased Chandgi have been obtained and compared by the applicant also pertains to the year 1972. This fact was also in the knowledge of applicant on the day she filed her written statement and again at the time of leading evidence. Thus allowing the application at this stage would tantamount to the case and reviewing its order passed by this court. The case has been fixed for arguments for two years now. The ratio of case titled “State of Punjab and others versus Ajmer Singh” relied upon by the learned counsel for the applicant, is not applicable to the case in hand. In Ajmer Singh’s case (supra), the witnesses were busy in a meeting with Deputy Commissioner and soon after the closure of evidence by the court, the application was moved. But in the instant case, the defendant availed of ample number of opportunities of fair hearing and the instant application was moved after seeking number of adjournment for addressing arguments. Thus since the applicant has already been given ample opportunities for leading evidence and the application seems to be an after thought and not a bonafide and fair move the same is consequently dismissed.” 5. Counsel for the petitioner submits that the petitioner did not come to know that her evidence had been closed and it was only when she contacted her lawyer in July 2010 then she came to know of the closure of their evidence. Counsel submits that the statement of the Handwriting Expert is essential as the Will is forged and she had come to know of that litigation only then they sought permission for additional evidence. 6. Counsel submits that the statement of the Handwriting Expert is essential as the Will is forged and she had come to know of that litigation only then they sought permission for additional evidence. 6. The counsel appearing for the contesting respondents urges that the suit was not contested by the mother and the other brothers and sisters and only defendants no.2 to 5 contested the case and were represented by the same counsel and joint written statement was filed and they were given six opportunities to lead evidence and their evidence was closed and that order was not challenged and when the case was fixed for rebuttal and arguments that the application was filed. The counsel submits that the claim made by the applicant that she was residing in a different village and her counsel had intimated and sent a letter at a different village stands falsified as in the title itself both the addresses are mentioned and the application had been filed through another counsel. The counsel submits that the defendant had taken a stand that the Will was forged and fabricated and they knew of the evidence they had to lead and when the order closing evidence had not been challenged they could not be permitted to lead additional evidence. 7. In Bhim Raj and others Vs. Jai Bhagwan and others, 2000(2) LJR 469 (P&H) it was held that when an order by the court closing the evidence of defendants is passed the order became final being unchallenged. It was held that the defendants could not be allowed to produce some evidence by way of additional evidence without bringing their case within the provisions i.e. inspite of exercise of due diligence. 8. In Chand Singh Vs. Naranjan Singh and another, 1990(1) LJR 719 (P&H) it was held that evidence closed by court order was never challenged and by making application for additional evidence, the plaintiff sought to set at naught the said order and the prayer was declined. 9. The lower Court notices the fact that the defendants had availed six opportunities for leading evidence and their evidence was closed in February 2010. The case had been adjourned for rebuttal and arguments several times and thereafter, that application was moved. The applicant had failed to point out that when she had got the information about the suit filed by their father in 1972. The case had been adjourned for rebuttal and arguments several times and thereafter, that application was moved. The applicant had failed to point out that when she had got the information about the suit filed by their father in 1972. The applicant did not even mention the date on which she had got the records inspected. They did not even place on record when the copies of the civil suit had been applied for. It appears that the application had been moved with a view to get the case reopened and avail another opportunity to lead evidence. Since the applicant had failed to challenge the order closing the evidence, therefore, they could not be permitted to lead additional evidence. It is also a case where the applicant had failed to exercise due diligence. I see no infirmity in the order. 10. The petition is dismissed.