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2019 DIGILAW 728 (HP)

Prabhi Devi v. Shankri Devi

2019-06-18

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - Instant petition filed under Article 227 of the Constitution of India lays challenge to order dated 4.4.2018, passed by the learned Civil Judge, Court No.3, Ghumarwin, District Bilaspur, H.P. in CS No. 120-1 of 2017-12, whereby an application under Order 8, Rule 1A (3) CPC having been filed by the petitioner-defendant (in short "the defendant") for placing on record copy of Pariwar Register of the family came to be rejected. 2. Having heard learned counsel for the parties and perused material adduced on record by the respective parties vis--vis reasoning assigned in the impugned order passed by the learned court below, this Court finds no illegality and infirmity in the same, because bare perusal of application (Annexure P-4) filed under Order 8, Rule 1A (3) CPC, nowhere suggests that plausible explanation, if any, is rendered on record by the defendant that despite due diligence, she could not produce the record earlier with regard to her marriage with deceased Ram Dass. 3. In the instant case, respondent-plaintiff (in short "the plaintiff") filed suit for declaration and permanent prohibitory injunction under sections 34, 37 and 38 of the Specific Relief Act to the effect that she is owner in possession of the suit land, description where of is given in the plaint (Annexure P-1). In the suit referred herein above, plaintiff while seeking injunction, in alternative, also prayed for suit for possession, if she is dispossessed by the defendant forcibly from any part of the suit land. Plaintiff averred in the plaint that she is a legally wedded wife of late Sh. Ram Dass, so of Sh. Khawaja, resident of village Rohin, Tehsil Ghumarwin, District Bilaspur and no issue was born out of the said wedlock and Sh. Ram Dass expired on 6.6.2012. 4. Defendant by way of written statement while denying the contents of the plaint contended that plaintiff had left the society of deceased Ram Dass 35 years prior to his death, whereafter defendant was residing with him and was enjoying possession of the suit land with Ram Dass. She further pleaded that by virtue of will dated 4.7.1998, duly registered in the office of Sub Registrar Ghumarwin, her name came to be recorded in the revenue record as co-sharer. She further pleaded that by virtue of will dated 4.7.1998, duly registered in the office of Sub Registrar Ghumarwin, her name came to be recorded in the revenue record as co-sharer. Defendant claimed that plaintiff has no right over the suit land and she being wife of the deceased Ram Dass and by virtue of registered will dated 4.7.1998, is in lawful ownership of the property in question. 5. Application under Order 8, Rule 1A (3) CPC admittedly came to be filed after closure of evidence of the defendant, who by way of aforesaid application sought permission of the court to tender on record copy of Pariwar Register of the family of Ram Dass. However, as has been noticed herein above such application came to be rejected vide impugned order dated 4.4.2018 passed by the court below on the ground that there is nothing to establish that despite due diligence, documents intended to be placed on record by way of instant application were not accessible earlier. 6. Though careful perusal of record, especially, impugned order reveals that matter repeatedly came to be adjourned at the behest of the defendant and there is no plausible explanation rendered on record that despite due diligence defendant failed to place on record document i.e. Pariwar Register, but having taken note of the fact that document intended to be placed on record by the defendant would enable court below to adjudicate the controversy at hand in just and fair manner, this Court is of the view that court below ought to have allowed the application at hand by granting one opportunity to the defendant to place on record copy of Pariwar Register. Admittedly, copy of pariwar register intended to be placed on record corroborates version of the defendant as stated in written statement having been filed by her with regard to her marriage with deceased Ram Dass. Needless to say, document, if permitted to be placed on record, would be required to be proved in accordance with law by the defendant and as such, no prejudice, whatsoever, would be caused to the opposite party in case prayer made in the present application is allowed. 7. No doubt, in case titled Salem Advocate Dist. Needless to say, document, if permitted to be placed on record, would be required to be proved in accordance with law by the defendant and as such, no prejudice, whatsoever, would be caused to the opposite party in case prayer made in the present application is allowed. 7. No doubt, in case titled Salem Advocate Dist. Bar Association vs. Union of India AIR 2005 SC 3353 , Hon''ble apex Court has held that party intending to place on record additional document must satisfy the court that proposed evidence was not within his/her knowledge or the evidence could not have been led earlier despite the exercise of due diligence, but this Court is of the view that Pariwar Regiter, which is crucial for adjudication of the case would have been not ordinarily withheld by the defendant, if it was readily available with her. Though explanation rendered on record does not appear to be plausible, but keeping in view the nature of document intended to be placed on record and its bearing on the case, this Court is certainly compelled to draw a conclusion that in normal circumstances, defendant would not have withheld it purposely, but since same was not in her custody or knowledge prior to her filing application under Order 8, Rule 1A (3) CPC, prayer to place the same on record came to be filed at a belated stage. 8. Consequently in view of the detailed discussion made herein above, present petition is allowed and impugned order 4.4.2018 is quashed and set-aside and the petitioner defendant is permitted to place on record the documents intended to be placed by her before the court below, subject to payment of costs of Rs. 11,000/- payable to the respondent/plaintiff. Learned counsel undertake to cause presence of respective parties before the Court below on 23.7.2019, enabling it to proceed with the matter in accordance with law. Petition stands disposed of, so also pending application, if any. 9. Copy dasti.