Case: Satnam Singh & Another Vs. Malook Singh & Others

1. Heard learned counsel for the appellants. 2. None appears for the respondents though served. 3. The appellant has preferred the appeal aggrieved by the judgment and order passed by the High Court in second appeal by setting aside the remand order passed by the Additional District Judge, Patiala on 25.1.2003 by which the defendant-appellant had been allowed to produce certified copies of the orders of the Assistant Collector and further to adduce additional evidence with respect to the Will dated 30.11.1987 by permitting them to place on record the original registered Will dated 30.11.1987. 4. It transpires that original will was filed by the defendant-appellant in the case pertaining to mutation, the record of the said case, was requisitioned and had been produced in the Court by Charan Singh but unfortunately the record was not retained. The District Court has allowed the evidence by making following discussion: ...14. Perusal of record of civil suit shows that on 18.10.2000 Charan Singh Office Kanungo Tehsil Samana produced some record of mutation no.903 of village Dhainthal in which registered Will no.34 dated 30.11.1987 was available. After recording such statement of Charan Singh and obtaining his signatures on his statement, thee is one more endorsement about receiving back file by said Charan Singh but such endorsement does not bear any date. When record was called from Charan Singh and he brought the record and produced the same and material document registered Will was lying on record of mutation no.903 brought by Charan Singh Office Kanungo, trial court out to have retained, why it was allowed to be taken back by Charan Singh is not understandable. 15. Perusal of statement of DW-3 Banjit Singh shows that be deposted that he had seen Will meant for original Will and he identified his signature thereon. He deposed that such Will was scribed by Ashok Kumar document writer. When Ranjith Singh DW-3 deposed so on 9.02.01 obviously original Will was available that is why he could identify his signatures on original Will but from the file it could not be understood who produced when statement of DW3 Ranjith Singh was recorded, then it should not be recorded in his statement that he had seen Will and identified his signature thereon. 16. Perusal of statement of DW-4 Ashok Kumar shows that he deposed he had seen original Will which was scribed by him. He had seen such original Will on the record of file. When he deposed so it infers that he had seen the original Will and identified his hand-writing on 2.6.01 when his statement was recorded. But it could not be spelt out from record who had brought such original Will, where original Will had gone and how original Will came in the hands of Balkar Singh or defendant-appellants. When such is the position of record of trial court, I am unable to maintain the judgment and decree of trial court when original Will is not on record and it could not be spelt out how original Will has gone in the hands of Balkar Singh or defendant-appellants. Perusal of para 13 of judgment shows that trial court observed that neither original Will nor its certified copy produced on record. When trial court made up mind to hold such findings of trial court generated from its own fault as to why it did not retain Will on record and how original Will slip from record of civil suit and how DW3 and DW4 could depose having seen original Will. Perusal of page 10 of judgment shows that trial court was overwhelmingly convinced against the Will due to reason of non-production of its certified copy. Such findings cannot be maintained at all. (i) Opportunities to lead addl. evidence to defendant appellants will be afforded for production of certified copies of orders of Asstt. Collector 1st Grade, Samana and Collector, Patiala. Trial court should afford opportunity to them to place original Will on record which is lying on record of present appeal tagged along with application dated 8.1.03; (ii) Trial Court shall afford opportunity to defendant-appellants to lead addl. evidence to prove Will dated 30.11.87 by alloweing them to place on record original registered Will of Hasura Singh dated 30.11.98; (iii) After evidence of contesting defendant so led trial court shall afford opportunities to plaintiffs for leading rebuttal evidence; (iv) After completion of such exercise trial court should re-decide all the issues in accordance with law; (v)Contesting defendant s are at liberally to either collect the original Will against proper identification and verification in accordance with law or the can summon the record of appeal for producing original Will on record of civil suit. Parties are directed to put appearance before trial court on 17.2.2003. Thereafter trial court shall endeavour to dispose of the suit as early as possible after giving due opportunities of leading evidence accordingly to both parties. 5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case.

Decision:
1[ds]5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case.