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2023 DIGILAW 3446 (PNJ)

Ayushi v. Mukhtiar Singh

2023-12-19

KARAMJIT SINGH

body2023
JUDGMENT Karamjit Singh, J. Present civil revision petition has been filed by the petitioners/defendants seeking setting aside of the impugned order dated 15.1.2019 passed by the Court of learned Civil Judge, Junior Division, Rohtak whereby an application filed by the respondents/plaintiffs for permission to lead additional evidence in civil suit titled Mukhtiar Singh (Now deceased) through LRs and others v. Ayushi and another, has been allowed. 2. Brief facts of the case are that initially, Mukhtiar Singh respondent No.1, his son Sandeep respondent No.2, and daughter Rekha @ Seema respondent No.3 filed suit for partition of the suit property against daughters of Ravinder Singh pre-deceased son of Mukhtiar Singh through their natural guardian/mother Neelam on the ground that the suit property was owned by Ram Devi wife of Mukhtiar Singh and she died on 16.5.2000 and on her death, the suit property was inherited by her husband Mukhtiar Singh, son Sandeep, daughter Rekha to the extent of 1/4th share each and by the petitioners jointly to the extent of remaining 1/4th share. The suit filed by the respondents was decreed vide judgment dated 29.8.2013 by the Court of Civil Judge, Junior Division, Rohtak. The appeal filed by the petitioners against the said judgment was allowed by the Court of Additional District Judge, Rohtak and the matter was remanded back to the trial Court for a fresh decision. Thereafter, during the pendency of the suit, Mukhtiar Singh died and respondent No.2-Sandeep was impleaded as his legal heir on the basis of registered Will stated to be executed by Mukhtiar Singh in his favour during his life time. The original plaint was also got amended wherein it was pleaded that Mukhtiar Singh died on 13.12.2016 and during his life time, the deceased executed a registered Will dated 22.5.2016 in favour of his son Sandeep with regard to his 1/4th share in the suit property. Thereafter, both the parties led their evidence and when the suit was fixed for rebuttal evidence, the respondents filed an application to lead additional evidence to produce and prove the aforesaid registered Will dated 22.05.2016 executed by Mukhtiar Singh in favour of his son Sandeep. 3. The application was contested by the petitioners. Thereafter, both the parties led their evidence and when the suit was fixed for rebuttal evidence, the respondents filed an application to lead additional evidence to produce and prove the aforesaid registered Will dated 22.05.2016 executed by Mukhtiar Singh in favour of his son Sandeep. 3. The application was contested by the petitioners. However, the learned trial Court allowed the said application and granted two opportunities to the respondents to produce and prove the Will in question executed by Mukhtiar Singh subject to costs of Rs.5000/- vide impugned order dated 15.1.2019. 4. Being aggrieved, the petitioners have filed the present revision petition against the order dated 15.1.2019. 5. I have heard the counsel for the parties. 6. Counsel for the petitioners has inter alia contended that the impugned order is not sustainable in the eye of law. It has been further contended that after the death of Mukhtiar Singh, the respondents got amended the plaint and took plea that the registered Will dated 22.5.2016 was executed in favour of Sandeep by his father Mukhtiar Singh. He has further submitted that on the completion of the pleadings, the learned trial Court framed issues and thereafter, the respondents availed number of opportunities to conclude their evidence but at that time, no efforts were made by the respondents to produce and prove the aforesaid Will in question in accordance with the provisions of Evidence Act. The application for additional evidence was filed by the respondents at the stage when even the petitioners also concluded their evidence and the case was fixed for rebuttal evidence, if any and arguments. 7. Counsel for the petitioners has further contended that evidence of the respondents was already closed by order by the learned trial Court on 14.2.2018 and the said order was never challenged in any manner by the respondents and thus, became final; that in the given circumstances, the respondents cannot be allowed to produce and prove Will in question by way of additional evidence as it would tantamount to circumvent order dated 14.02.2018 whereby the evidence of the respondents was closed by order. In support of his contentions, counsel for the petitioners has placed reliance upon decisions of this Court in Smt. Daljit Kaur v. Amarjit Kaur and another 2015 (2) PLR 121 and Jagsir Singh v. Malkit Singh and others 2011 (52) RCR (Civil) 710. In support of his contentions, counsel for the petitioners has placed reliance upon decisions of this Court in Smt. Daljit Kaur v. Amarjit Kaur and another 2015 (2) PLR 121 and Jagsir Singh v. Malkit Singh and others 2011 (52) RCR (Civil) 710. Counsel for the petitioners has further submitted that in application (Annexure P-5) filed by the respondents for permission to lead additional evidence, no cogent reason has been given as to why the respondents failed to produce the said evidence at the earlier stage when the trial Court had given proper and effective opportunity to the respondents to adduce their evidence. It has been further contended that till filing of the application for additional evidence, the respondents failed to produce copy of Will in question on the judicial file of the trial Court. It has been further submitted that approach of the learned trial Court while allowing the application for additional evidence was totally erroneous and thus, the impugned order deserves to be set aside. 8. On the other hand, learned senior counsel for the respondents, while supporting the impugned order has inter alia contended that immediately after the death of Mukhtiar Singh, the fact regarding execution of registered Will dated 22.5.2016 was brought to the notice of the trial Court and resultantly, the original plaint was also amended to plead the aforesaid fact. Learned Senior Counsel for the respondents has further contended that while appearing in the witness box, respondent No.2-Sandeep in his examination-in-chief tendered his affidavit wherein he specifically deposed with regard to registered Will dated 22.5.2016. It has been further contended that the aforesaid will is a material document which is necessary for just decision of the case and that prior to the filing of the application for additional evidence, the respondents failed to produce and prove the Will in question due to oversight and mistake being bonafide, learned trial Court rightly allowed the application for additional evidence moved by the respondents. Learned senior counsel for the respondents has further contended that the Will in question being a registered document is a public document and its registration goes long way to prove its genuineness. Learned senior Counsel for the respondents has further contended that even otherwise, the authenticity of the Will in question will be tested during trial after the same is produced and proved on record by the respondents in accordance with law. Learned senior Counsel for the respondents has further contended that even otherwise, the authenticity of the Will in question will be tested during trial after the same is produced and proved on record by the respondents in accordance with law. Learned Senior Counsel has further contended that there is no illegality or perversity in the impugned order and that the present petition deserves to be dismissed. In support of his contentions, learned Senior Counsel has relied upon Sukhwinder Kaur v. Hardev Kaur and others, 2019 (1) RCR (Civil) 953 wherein the party was allowed to lead additional evidence as the same was found to be essential for just adjudication of the suit. 9. I have considered the submissions made by counsel for the parties and gone through the impugned order. 10. The provision of Order 7, Rule 11 which permitted production of additional evidence at a later stage, was deleted by CPC (Amendment), Act 1999 w.e.f. 01.07.2002. However, this does not take away inherent power of the Court under section 151 CPC to do substantial justice between the parties and allow any material evidence to be produced by them unless it is actuated with malafide or is due to gross negligence on their part. A duty has been cast on the Court to examine prima facie the relevancy of the material sought to be produced so as to conclude that the application filed is bonafide and not to harass the opposite side by filing a frivolous application and to ensure that the procedural law is not misused to delay the decision of the suit. In this regard, reference is made to judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.496 of 2002 titled as Salem Advocate Bar Association, Tamilnadu v. Union of India decided on 02.08.2005 wherein it was observed as under:- "That even before the insertion of provision of Order 18, Rule 17A in CPC, the Court had inbuilt power to permit parties to produced evidence not known to them earlier or which could not be produce in spite of due diligence. Order 18, Rule 17A of CPC did not create any new right but only clarified the position. Therefore, deletion of Order 18, Rule 17A does not dis-entitled production of evidence at a later stage." 11. Order 18, Rule 17A of CPC did not create any new right but only clarified the position. Therefore, deletion of Order 18, Rule 17A does not dis-entitled production of evidence at a later stage." 11. In the instant case, Mukhtiar Singh, his son Sandeep and daughter Rekha @ Seema filed suit for partition of the suit property which was previously owned by Ram Devi wife of Mukhtiar Singh who died on 16.05.2000 leaving behind her husband, sons Sandeep and Ravinder, and daughter Rekha @ Seema as his legal heirs. Ravinder pre-deceased his father Mukhtiar Singh leaving behind present petitioners as his legal heirs. During the pendency of the suit Mukhtiar Singh also died and respondent Sandeep was impleaded as his legal heirs on the basis of registered will dated 22.05.2016. The original plaint was also amended accordingly wherein it was specifically pleaded that Mukhtiar Singh executed valid registered will dated 22.05.2016 with regard to his estate in favour of his son Sandeep. 12. By way of additional evidence, the respondents wanted to produce and prove aforesaid registered will dated 22.05.2016 executed by Mukhtiar Singh in favour of his son Sandeep (respondent). However, no specific issue with regard to execution of will was framed by the learned trial Court. Respondent Sandeep failed to produce and prove the aforesaid registered will during the course of his evidence. The evidence of the respondents/plaintiffs was closed by order and even petitioners/defendants also concluded their evidence and when the suit was fixed for rebuttable evidence, the application for leading additional evidence to produce and prove aforesaid will was filed by respondent Sandeep. It cannot be disputed that the evidence which Sandeep intends to produce by way of additional evidence is necessary for just and proper adjudication of the case and will also avoid multiplicity of litigation between the parties. There is nothing on the record to show that the permission sought to lead additional evidence is actuated with malafide. 13. It is well established principle of law that rules of procedure are hand maids of justice and a pragmatic approach has to be adopted while dealing with the rights of the parties as procedure is made primarily to achieve the ends of justice. The technicalities of procedure cannot be used to thwart the ends of justice. The endeavour of the Court should be to decide the controversy fully and finally between the parties. The technicalities of procedure cannot be used to thwart the ends of justice. The endeavour of the Court should be to decide the controversy fully and finally between the parties. This Court in Pawan Kumar v. Raj Kumar and others 2007 (1) RCR (Civil) 385 held that once it is felt that the evidence was necessary for just decision of the case, delay cannot be a ground to dis-allow the same. 14. While dealing with provision of Order 18, Rule 17 CPC, which enable the Court at any stage of suit to recall any witness who has been examined, the Hon'ble Supreme Court in KK Velusamy v. N. Palanisamy 2011 (2) RCR (Civil) 875 held as under:- "There is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18, Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications." 15. In the instant case, it is evident that respondent Sandeep has pleaded registered will dated 22.05.2016 from the very beginning and even when appeared in the witness box as PW-1 he deposed regarding the said will. It being so, this Court is of the view that the party failed to produce and prove the said will at appropriate stage only due to fault of counsel, for which the litigant could not be made to suffer. 16. It being so, this Court is of the view that the party failed to produce and prove the said will at appropriate stage only due to fault of counsel, for which the litigant could not be made to suffer. 16. In the given circumstances, there was no ground for the trial Court to decline the application for additional evidence, just on the ground that it was filed at belated stage or that the evidence of the respondents was already closed by order. So the trial Court rightly permitted the respondents to lead additional evidence as prayed for, in the interest of justice. 17. Consequently, no ground is made out warranting interference by this Court as there is no illegality or infirmity in the impugned order passed by the learned trial Court. However, it is made clear that the petitioners must be given an opportunity to rebut the aforesaid additional evidence. 18. This revision petition is disposed of in aforesaid terms.