CR No.2432 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2432 of 2007
Date of Decision: 27.8.2008
Ravinder Singh ..Petitioner
Vs.
Parkash Singh & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.Shiv Kumar, Advocate,
for the petitioner.
Mr.C.B.Goel, Advocate,
for the respondents.
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1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
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Vinod K.Sharma,J. (Oral)
This revision under Article 227 of the Constitution of India is
directed against the order dated 5.4.2007 passed by the learned Civil Judge
(Sr.Division), Gurgaon whereby the learned court below partly accepted the
CR No.2432 of 2007 2
application for additional evidence filed by the petitioner and declined the
prayer of the petitioner to produce adoption deed by way of additional
evidence.
The petitioner filed two suits – one to challenge the Will dated
5.5.1993 and the decree passed in civil suit titled “Shanti Devi Vs. Girvar”
and the second to challenge the decree dated 29.8.1992 passed by learned
Senior Sub Judge, Gurgaon in the case of ‘Shanti Vs. Girwar’. Both the suits
stand consolidated in pursuance to the order dated 4.2.2003 and the
proceedings are being recorded in Civil Suit No.62 of 1994. The petitioner
claims that adoption deed was executed by Girvar Singh adopting the
petitioner as his adopted son.
After the parties had led evidence the petitioner moved an
application for permission to lead additional evidence. The petitioner by
way of additional evidence wanted to produce Mutations No.731 dated
25.5.1908, No.296 dated 26.7.1945, No. 1062 dated 9.4.1946 and Pedigree
table of the year 1877. It was claimed that mutations are per se admissible
as also the Pedigree table as the documents to be produced were the
certified copies issued by the revenue authorities and are better documents.
The petitioner also sought to produce original adoption deed duly registered
which was produced by the petitioner in another case titled ‘Ravinder Vs.
Ms.Anita Kohli and others’ and the certified copy whereof has been placed
in the said case.
The application moved by the petitioner was contested.
Learned Civil Judge (Senior Division), Gurgaon by way of
impugned order partly allowed the application moved by the petitioner by
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way of additional evidence but declined the prayer for production of
adoption deed.
It is the case of he petitioner that after the closure of the
evidence by the defendants the plaintiff has summoned the evidence in
rebuttal but an application was moved by the respondent-defendants that the
evidence sought to be led by the petitioner by way of rebuttal evidence was
in affirmative and therefore, was not permissible by way of rebuttal
evidence. The defendants gave up the issues burden of which was on the
defendant-respondents to prove the said issues and in view of this the
application moved by the defendant-respondents was accepted and the
petitioner was not allowed to lead additional evidence. It was thereafter the
present application was moved.
Though the application moved by the petitioner was for leading
additional evidence, learned trial court rejected the claim of the petitioner
by observing that as the onus of material issues was upon the plaintiff
petitioner and he was supposed to lead evidence on these issues in
affirmative therefore, he could not be allowed to lead evidence in rebuttal
which is in the nature of affirmative evidence. Learned court also came to
the conclusion that no case was made out in the application showing that
any evidence was led by the defendants which could force the petitioner to
lead evidence in rebuttal. Learned trial court further observed that mere
tendering of certified copy of adoption deed was not sufficient to prove the
factum of adoption as formal evidence is required to prove the said
document.
As regard the prayer of the petitioner for leading additional
CR No.2432 of 2007 4
evidence to prove adoption deed was declined by observing that when a
particular and specific issue was framed with regard to the adoption the
petitioner was required to lead evidence in affirmative. The court also
observed that it cannot be said that adoption deed was not in his
knowledge. Learned trial court thus, rejected the plea of the petitioner for
leading additional evidence to prove the adoption deed.
Learned trial court, however, allowed the application with
regard to the other documents by observing that they are public documents
for which formal proof would not be required. The court further observed
that he documents cannot be said to be prepared or created by the plaintiff
petitioner by afterthought. Thus, the petitioner was allowed to lead
additional evidence qua Mutation Nos.731 dated 25.5.1908, 296 dated
26.7.1945, 1062 dated 9.4.1946 and Pedigree table of the year 1877 subject
to costs of Rs.500/- However, application for leading evidence by way of
additional evidence to prove adoption deed stands declined.
Mr. Shiv Kumar, learned counsel appearing on behalf of the
petitioner contended that by deletion of the provisions of Order 18 Rule
17-A of the Code by way of amendment dated 1.7.2002 power of the court
to permit a party to produce evidence not known to them earlier or which
could not be produced in spite of due diligence has not been taken away as
the said power is inbuilt.
The application is opposed by Mr.C.B.Goel, learned counsel
appearing on behalf of the defendant-respondents.
Learned counsel for the respondents contended that once the
petitioner did not lead the evidence in affirmative he could not be allowed
CR No.2432 of 2007 5
to lead evidence in rebuttal when no evidence is led on the issues by the
defendants the onus of which is on the defendants. In support of this
contention learned counsel for the respondents placed reliance on the
judgment of this court in the case of Sharam Singh Vs. Gurjit Singh &
Ors. 2002 (1) CCC 665.
Learned counsel for the respondents by placing reliance on the
judgment of this court in the case of Mehnga Singh Vs. Lal Chand and
others 1999(2) S.L.J.,1640 contended that the learned trial court was right
in rejecting the application as the evidence with the petitioner now intends
to produce was very much in existence when the suit was filed and there
was no material to establish that notwithstanding the exercise of due
diligence the evidence could not be produced during the suit proceedings
was not within his the knowledge. Needless to mention here that the
judgment relied upon by the learned counsel for the respondents was with
regard to application moved under Order 41 Rule 27 of the Code.
Learned counsel for the respondents thereafter placed reliance
on the judgment of was Kulwant Singh Vs. Makhan Singh 1992 PLJ 348
to contend that as onus to prove adoption deed was on the plaintiff
petitioner it was obligatory for him to produce the entire evidence in
affirmative. The petitioner plaintiff, therefore, has no right to rebut the
evidence of the defendants by leading additional evidence.
Finally reliance was placed by the learned counsel for the
respondents on the judgment of Hon’ble Supreme Court in the case of
Mahavir Singh & Ors Vs. Naresh Chandra and another AIR 2001 SC
134 to contend that it is not permissible for the court in exercise of powers
CR No.2432 of 2007 6
under section 115 of the Code to interfere with the order refusing additional
evidence.
On consideration of the matter, I find force in the contentions
raised by the learned counsel for the petitioner.
It is not in doubt that the dispute between the parties is as to
whether the plaintiff petitioner is adopted son of Girwar Singh. It may also
be noticed that certified copy of the adoption deed was placed on record as
the original had been filed by the petitioner in another case titled Ravinder
Vs. Anita Kohli and the certified copy had already been placed in the case.
It may be noticed that the petitioner was not negligent and had
taken steps to bring the adoption deed on record. It can also not be disputed
that the court has inherent power to allow additional evidence in case it is
proved on record that notwithstanding with the due diligence the said
evidence was not within the knowledge or could not after exercise of due
diligence be produced by him. Inherent power also can be exercised for
advancement of justice as the procedural rules are handmade for advancing
justice and not to thwart the same. The court, therefore, has also power to
allow the additional evidence in case it is proved on record that the evidence
sought to be produced is necessary for the just and proper adjudication of
the case and the documents sought to be produced would enable the court to
pronounce the judgment. Additional evidence even can be allowed for any
other substantial cause.
Once the parties are aware of the dispute between them and
certified copy of the adoption deed already placed on record it cannot be
said that any prejudice was likely to be caused to the respondent-defendants
CR No.2432 of 2007 7
in case the said evidence was allowed. The contention of the learned
counsel for the respondents that the petitioner could not be permitted to lead
evidence in rebuttal does not arise in the present case as the application for
leading evidence in rebuttal was rejected by the learned trial court.
Reliance by the learned counsel for the respondents on the
judgment of this court in the cases of Mehnga Singh Vs. Lal Chand and
others and Kulwant Singh Vs. Makhan Singh (supra) also cannot
advance the case of the respondents as in the said cases the question
whether the evidence sought to be produced was necessary for the just and
proper adjudication of the case and was further required for pronouncement
of judgment has not been considered and the decision is on the point that the
evidence which was within the knowledge and could be produced with due
diligence was considered.
In the present case as already observed that the documents
sought to be produced was not in possession of the petitioner and was
admittedly produced in court and therefore, it could not be said that in
spite of due diligence the petitioner could have produced the said document
in court.
As already observed present case is one where the production
of adoption deed goes to the very root of the matter and therefore,
evidence sought to be produced was necessary for the pronouncement of
judgment by the court and therefore, the impugned order cannot be
sustained.
The contention of the learned counsel for the respondents that
the impugned order cannot be interfered with in revision also cannot be
CR No.2432 of 2007 8
sustained as the present revision has been filed under Article 227 of the
Constitution of India and not under section 115 of the Code.
Hon’ble Supreme Court in the case of Surya Dev Rai Vs. Ram
Chander Rai AIR 2003 SC 3044 has been pleased to lay down that the
scope of Article 227 of the Constitution of India is much wider in exercise
of supervisory jurisdiction over its subordinate courts and the exercise of
jurisdiction under Article 226/227 of the Constitution cannot be tied down
in a straightjacket formula or rigid rule. This court, therefore, in the interest
of justice can correct an error in the judgment of its subordinate court in
exercise of powers under Article 227of the Constitution.
Consequently, this revision is allowed. Order impugned is set
aside. It is ordered that the application moved by the petitioner plaintiff for
leading evidence stands allowed in toto. However, the petitioner shall be
granted only one opportunity to lead evidence to prove the adoption deed.
However, this shall be subject to payment of Rs.3000/- as costs.
27.8. 2008 (Vinod K.Sharma) rp Judge