{"id":37399,"date":"2008-08-27T00:00:00","date_gmt":"2008-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ravinder-singh-vs-parkash-singh-ors-on-27-august-2008"},"modified":"2016-03-03T00:10:37","modified_gmt":"2016-03-02T18:40:37","slug":"ravinder-singh-vs-parkash-singh-ors-on-27-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ravinder-singh-vs-parkash-singh-ors-on-27-august-2008","title":{"rendered":"Ravinder Singh vs Parkash Singh & Ors on 27 August, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ravinder Singh vs Parkash Singh & Ors on 27 August, 2008<\/div>\n
CR No.2432 of 2007                                            1\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n\n\n                                     CR No.2432 of 2007\n\n                                     Date of Decision: 27.8.2008\n\n\n\nRavinder Singh                                         ..Petitioner\n\n                        Vs.\n\nParkash Singh & Ors.                                   ..Respondents\n\n\n\n\nCoram: Hon'ble Mr. Justice Vinod K.Sharma\n\n\n\nPresent:    Mr.Shiv Kumar, Advocate,\n            for the petitioner.\n\n            Mr.C.B.Goel, Advocate,\n            for the respondents.\n\n                       ---\n      1.    Whether Reporters of Local Newspapers may\n            be allowed to see the judgment?\n\n      2.     To be referred to the Reporters or not?\n\n      3.     Whether the judgment should be reported in\n             Digest?\n                             ---\n\n\nVinod K.Sharma,J. (Oral)\n<\/pre>\n
            This revision under Article 227 of the Constitution of India is<\/p>\n
directed against the order dated 5.4.2007 passed by the learned Civil Judge<\/p>\n
(Sr.Division), Gurgaon whereby the learned court below partly accepted the
\n CR No.2432 of 2007                                             2<\/span><\/p>\n
application for additional evidence filed by the petitioner and declined the<\/p>\n
prayer of the petitioner to produce adoption deed by way of additional<\/p>\n
evidence.\n<\/p>\n
             The petitioner filed two suits – one to challenge the Will dated<\/p>\n
5.5.1993 and the decree passed in civil suit titled “Shanti Devi Vs. Girvar”<\/p>\n
and the second to challenge the decree dated 29.8.1992 passed by learned<\/p>\n
Senior Sub Judge, Gurgaon in the case of ‘Shanti Vs. Girwar’. Both the suits<\/p>\n
stand consolidated in pursuance to the order dated 4.2.2003 and the<\/p>\n
proceedings are being recorded in Civil Suit No.62 of 1994. The petitioner<\/p>\n
claims that adoption deed was executed by Girvar Singh         adopting the<\/p>\n
petitioner as his adopted son.\n<\/p>\n
             After the parties had led evidence the petitioner moved an<\/p>\n
application for permission to lead additional evidence. The petitioner by<\/p>\n
way of additional evidence wanted to produce Mutations No.731 dated<\/p>\n
25.5.1908, No.296 dated 26.7.1945, No. 1062 dated 9.4.1946 and Pedigree<\/p>\n
table of the year 1877. It was claimed that mutations are per se admissible<\/p>\n
as also the Pedigree table as the documents to be produced were the<\/p>\n
certified copies issued by the revenue authorities and are better documents.<\/p>\n
The petitioner also sought to produce original adoption deed duly registered<\/p>\n
which was produced by the petitioner in another case titled ‘Ravinder Vs.<\/p>\n
Ms.Anita Kohli and others’ and the certified copy whereof has been placed<\/p>\n
in the said case.\n<\/p>\n
             The application moved by the petitioner was contested.<\/p>\n
             Learned Civil Judge (Senior Division), Gurgaon by way of<\/p>\n
impugned order partly allowed the application moved by the petitioner by
\n CR No.2432 of 2007                                             3<\/span><\/p>\n
way of additional evidence but declined the prayer for production of<\/p>\n
adoption deed.\n<\/p>\n
            It is the case of he petitioner that after the closure of the<\/p>\n
evidence by the defendants the plaintiff has summoned the evidence in<\/p>\n
rebuttal but an application was moved by the respondent-defendants that the<\/p>\n
evidence sought to be led by the petitioner by way of rebuttal evidence was<\/p>\n
in affirmative and therefore, was not permissible by way of rebuttal<\/p>\n
evidence. The defendants gave up the issues burden of which was on the<\/p>\n
defendant-respondents to prove the said issues and in view of this the<\/p>\n
application moved by the defendant-respondents was accepted and the<\/p>\n
petitioner was not allowed to lead additional evidence. It was thereafter the<\/p>\n
present application was moved.\n<\/p>\n
            Though the application moved by the petitioner was for leading<\/p>\n
additional evidence, learned trial court rejected the claim of the petitioner<\/p>\n
by observing that as the onus of material issues was upon the plaintiff<\/p>\n
petitioner and he was supposed to lead evidence on these issues in<\/p>\n
affirmative therefore, he could not be allowed to lead evidence in rebuttal<\/p>\n
which is in the nature of affirmative evidence. Learned court also came to<\/p>\n
the conclusion that no case was made out in the application showing that<\/p>\n
any evidence was led by the defendants which could force the petitioner to<\/p>\n
lead evidence in rebuttal. Learned trial court further observed that mere<\/p>\n
tendering of certified copy of adoption deed was not sufficient to prove the<\/p>\n
factum of adoption as formal evidence is required to prove the said<\/p>\n
document.\n<\/p>\n
            As regard the prayer of the petitioner for leading additional
\n CR No.2432 of 2007                                              4<\/span><\/p>\n
evidence to prove adoption deed was declined by observing that when a<\/p>\n
particular and specific issue was framed with regard to the adoption the<\/p>\n
petitioner was required to lead evidence in affirmative. The court also<\/p>\n
observed that it cannot be said that adoption deed            was not in his<\/p>\n
knowledge. Learned trial court thus, rejected the plea of the petitioner for<\/p>\n
leading additional evidence to prove the adoption deed.<\/p>\n
             Learned trial court, however, allowed the application with<\/p>\n
regard to the other documents by observing that they are public documents<\/p>\n
for which formal proof would not be required. The court further observed<\/p>\n
that he documents cannot be said to be prepared or created by the plaintiff<\/p>\n
petitioner by afterthought. Thus, the petitioner was allowed to lead<\/p>\n
additional evidence qua Mutation Nos.731 dated       25.5.1908, 296 dated<\/p>\n
26.7.1945, 1062 dated 9.4.1946 and Pedigree table of the year 1877 subject<\/p>\n
to costs of Rs.500\/- However, application for leading evidence by way of<\/p>\n
additional evidence to prove adoption deed stands declined.<\/p>\n
             Mr. Shiv Kumar, learned counsel appearing on behalf of the<\/p>\n
petitioner contended that by deletion of the provisions of Order 18 Rule<\/p>\n
17-A of the Code by way of amendment dated 1.7.2002 power of the court<\/p>\n
to permit a party to produce evidence not known to them earlier or which<\/p>\n
could not be produced in spite of due diligence has not been taken away as<\/p>\n
the said power is inbuilt.\n<\/p>\n
             The application is opposed by Mr.C.B.Goel, learned counsel<\/p>\n
appearing on behalf of the defendant-respondents.<\/p>\n
             Learned counsel for the respondents contended that once the<\/p>\n
petitioner did not lead the evidence in affirmative he could not be allowed
\n CR No.2432 of 2007                                             5<\/span><\/p>\n
to lead evidence in rebuttal when no evidence is led on the issues by the<\/p>\n
defendants the onus of which is on the defendants. In support of this<\/p>\n
contention learned counsel for the respondents placed reliance on the<\/p>\n
judgment of this court in the case of Sharam Singh Vs. Gurjit Singh &<\/p>\n
Ors. 2002 (1) CCC 665.\n<\/p>\n
            Learned counsel for the respondents by placing reliance on the<\/p>\n
judgment of this court in the case of Mehnga Singh Vs. Lal Chand and<\/p>\n
others 1999(2) S.L.J.,1640 contended that the learned trial court was right<\/p>\n
in rejecting the application as the evidence with the petitioner now intends<\/p>\n
to produce was very much in existence when the suit was filed and there<\/p>\n
was no material to establish that notwithstanding the exercise of due<\/p>\n
diligence the evidence could not be produced during the suit proceedings<\/p>\n
was not within his the knowledge. Needless to mention here that the<\/p>\n
judgment relied upon by the learned counsel for the respondents was with<\/p>\n
regard to application moved under Order 41 Rule 27 of the Code.<\/p>\n
            Learned counsel for the respondents thereafter placed reliance<\/p>\n
on the judgment of was Kulwant Singh Vs. Makhan Singh 1992 PLJ 348<\/p>\n
to contend that    as onus to prove adoption deed was on the plaintiff<\/p>\n
petitioner it was obligatory for him to produce the entire         evidence in<\/p>\n
affirmative. The petitioner plaintiff, therefore, has no right to rebut the<\/p>\n
evidence of the defendants by leading additional evidence.<\/p>\n
            Finally reliance was placed by the learned counsel for the<\/p>\n
respondents on the judgment of Hon’ble Supreme Court in the case of<\/p>\n
Mahavir Singh & Ors Vs. Naresh Chandra and another AIR 2001 SC<\/p>\n
134 to contend that it is not permissible for the court in exercise of powers
\n CR No.2432 of 2007                                             6<\/span><\/p>\n
under section 115 of the Code to interfere with the order refusing additional<\/p>\n
evidence.\n<\/p>\n
            On consideration of the matter, I find force in the contentions<\/p>\n
raised by the learned counsel for the petitioner.\n<\/p>\n
            It is not in doubt that the dispute between the parties is as to<\/p>\n
whether the plaintiff petitioner is adopted son of Girwar Singh. It may also<\/p>\n
be noticed that certified copy of the adoption deed was placed on record as<\/p>\n
the original had been filed by the petitioner in another case titled Ravinder<\/p>\n
Vs. Anita Kohli and the certified copy had already been placed in the case.<\/p>\n
            It may be noticed that the petitioner was not negligent and had<\/p>\n
taken steps to bring the adoption deed on record. It can also not be disputed<\/p>\n
that the court has inherent power to allow additional evidence in case it is<\/p>\n
proved on record that notwithstanding with the due diligence the said<\/p>\n
evidence was not within the knowledge or could not after exercise of due<\/p>\n
diligence be produced by him. Inherent power also can be exercised for<\/p>\n
advancement of justice as the procedural rules are handmade for advancing<\/p>\n
justice and not to thwart the same. The court, therefore, has also power to<\/p>\n
allow the additional evidence in case it is proved on record that the evidence<\/p>\n
sought to be produced is necessary for the just and proper adjudication of<\/p>\n
the case and the documents sought to be produced would enable the court to<\/p>\n
pronounce the judgment. Additional evidence even can be allowed for any<\/p>\n
other substantial cause.\n<\/p>\n
            Once the parties are aware of the dispute between them and<\/p>\n
certified copy of the adoption deed already placed on record it cannot be<\/p>\n
said that any prejudice was likely to be caused to the respondent-defendants
\n CR No.2432 of 2007                                              7<\/span><\/p>\n
in case the said evidence was allowed. The contention of the learned<\/p>\n
counsel for the respondents that the petitioner could not be permitted to lead<\/p>\n
evidence in rebuttal does not arise in the present case as the application for<\/p>\n
leading evidence in rebuttal was rejected by the learned trial court.<\/p>\n
             Reliance by the learned counsel for the respondents on the<\/p>\n
judgment of this court in the cases of   Mehnga Singh Vs. Lal Chand and<\/p>\n
others and Kulwant Singh Vs. Makhan Singh (supra)                   also cannot<\/p>\n
advance the case of the respondents as in the said cases the question<\/p>\n
whether the evidence sought to be produced was necessary for the just and<\/p>\n
proper adjudication of the case and was further required for pronouncement<\/p>\n
of judgment has not been considered and the decision is on the point that the<\/p>\n
evidence which was within the knowledge and could be produced with due<\/p>\n
diligence was considered.\n<\/p>\n
             In the present case as already observed that the documents<\/p>\n
sought to be produced was not in possession of the petitioner and was<\/p>\n
admittedly produced in court and therefore, it could not be said that in<\/p>\n
spite of due diligence the petitioner could have produced the said document<\/p>\n
in court.\n<\/p>\n
             As already observed present case is one where the production<\/p>\n
of adoption deed      goes to the very root of the matter and therefore,<\/p>\n
evidence sought to be produced was necessary for the pronouncement of<\/p>\n
judgment by the court       and therefore, the impugned order cannot be<\/p>\n
sustained.\n<\/p>\n
             The contention of the learned counsel for the respondents that<\/p>\n
the impugned order cannot be interfered with in revision also cannot be
\n CR No.2432 of 2007                                                8<\/span><\/p>\n
sustained as the present revision has been filed under Article 227 of the<\/p>\n
Constitution of India and not under section 115 of the Code.<\/p>\n
             Hon’ble Supreme Court in the case of Surya Dev Rai Vs. Ram<\/p>\n
Chander Rai AIR 2003 SC 3044 has been pleased to lay down that the<\/p>\n
scope of Article 227 of the Constitution of India is much wider in exercise<\/p>\n
of supervisory jurisdiction over its subordinate courts and the exercise of<\/p>\n
jurisdiction under Article 226\/227 of the Constitution cannot be tied down<\/p>\n
in a straightjacket formula or rigid rule. This court, therefore, in the interest<\/p>\n
of justice can correct an error in the judgment of its subordinate court in<\/p>\n
exercise of powers under Article 227of the Constitution.<\/p>\n
             Consequently, this revision is allowed. Order impugned is set<\/p>\n
aside. It is ordered that the application moved by the petitioner plaintiff for<\/p>\n
leading evidence stands allowed in toto. However, the petitioner shall be<\/p>\n
granted only one opportunity to lead evidence to prove the adoption deed.<\/p>\n
However, this shall be subject to payment of Rs.3000\/- as costs.<\/p>\n
27.8. 2008                                    (Vinod K.Sharma)\nrp                                                 Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ravinder Singh vs Parkash Singh & Ors on 27 August, 2008 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-37399","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nRavinder Singh vs Parkash Singh & Ors on 27 August, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ravinder-singh-vs-parkash-singh-ors-on-27-august-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ravinder Singh vs Parkash Singh & Ors on 27 August, 2008 - 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