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2019 DIGILAW 1583 (HP)

Jagpal Singh v. Veena Devi

2019-10-24

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, petitioner has challenged order dated 01.04.2017, passed by the Court of learned Civil Judge (Senior Division), Court No.1, Paonta Sahib, District Sirmaur, H.P., vide which learned trial Court has dismissed the application filed by the petitioner herein, who is defendant before the learned Court below, filed under Section 151 of the Code of Civil Procedure, for leading additional evidence for examining Patwari Bansi Ram, in support of application filed under Section 65 (c) of the Indian Evidence Act, 1872. The application stands dismissed by the learned trial Court by assigning following reasons:- "Thus, after hearing ld. respective counsel for the parties it is observed that the Hon'ble High Court of H.P. has found no merit in the petition being filed by the applicant and it has been dismissed. The leave has been granted, "to lead the Patwari into the witness box" but as the main petition has itself been dismissed whereas this application has been moved for examining Patwari in support of application under Section 65(c) of the aforesaid Act being already dismissed as such there is no substance in the assertion of applicant and the application is dismissed. Let the file be put up for DW on 29.4.2017. Steps if any be taken within 3 days". 2. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended with the petition. 3. Record demonstrates that earlier an application was filed by the present petitioner under Section 65 (c) of the Indian Evidence Act, seeking leave of the Court to lead secondary evidence to prove the Will dated 27.12.1996, however, the same was dismissed by the learned trial Court vide order dated 25.08.2014 (Annexure P-3). Said order was unsuccessfully assailed by the petitioner before this Court by way of CMPMO No.346 of 2014, titled as Jaspal Singh and others Versus Veena Devi and another, which petition was dismissed by this Court vide order dated 06.04.2015 (Annexure P-4). However, while dismissing the said petition, this Court observed as under:- "However, it is open to the petitioners to move an appropriate application before the learned trial Court, seeking leave of the learned trial Court to lead the Patwari into the witness box. Any such application shall be decided by the learned trial Court in accordance with law. No costs". 4. Any such application shall be decided by the learned trial Court in accordance with law. No costs". 4. It is thereafter, the petitioner filed the application, in which impugned order has been passed. The application is appended with the petition as Annexure P-5. Head Note of the application which was filed by the petitioner, reads as under:- "Application U/S 151 CPC for addition of evidence to examine Patwari Sh. Bansi Ram Sharma in support of application U/S 65 (c) of Indian Evidence Act". 5. As already mentioned hereinabove, it is a matter of record that application which was filed by the petitioner under Section 65 (c) of the Indian Evidence Act, stood dismissed by the learned trial Court. The order passed by the learned trial Court stood affirmed by this Court. In these circumstances, subsequent application filed by the petitioner under Section 151 of the Code of Civil Procedure for leading additional evidence by way of examination of Patwari in support of application filed under Section 65 (c) of the Indian Evidence Act, was completely misconceived. This is for the reason that when the application filed under Section 65 (c) of the Indian Evidence Act itself stood dismissed by the learned trial Court, there was no occasion for the petitioner to have had moved a fresh application under Section 151 of the Code of Civil Procedure in support of the application filed under Section 65 (c) of the Indian Evidence Act. 6. It appears that liberty which was granted to the petitioner by this Court in its earlier order dated 06.04.2015 passed in CMPMO No.346 of 2014, has been misread and misunderstood by the petitioner. 7. In this background, this Court does not finds any infirmity with the order impugned. 8. At this stage, learned counsel for the petitioner submits that this Court may observe that dismissal of the present petition shall not come in his way in filing an appropriate application before the learned trial Court in terms of the liberty which stood granted to him by this Court in its earlier order dated 06.04.2015. Ordered accordingly, however, subject to all legal rights available to the respondents. Petition is dismissed, so also pending miscellaneous applications, if any. Interim order, if any, stands vacated.