C.R. No. 4558 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 4558 of 2011 Date of Decision: 20.10.2011 Chhinder Kaur and another ....Petitioners. Versus Kamaljit Singh and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. K.S. Boparai, Advocate for the petitioners. Mr. Gurcharan Dass, Advocate for the respondents. AJAY KUMAR MITTAL, J. 1. The plaintiffs-petitioners are aggrieved by the order of the trial court dated 7.6.2011 (Annexure P-5) whereby the application dated 20.8.2009 (Annexure P-1) filed by them for leading additional evidence was dismissed. 2. Briefly stated, the facts necessary for adjudication of the present petition are that the plaintiffs filed suit for a decree of joint possession of the suit land and for declaration with consequential relief of permanent injunction restraining the defendants from alienating the same. Defendant No.1 claims himself as adopted son of Niranjan Singh whereas defendant No.2 is wife of defendant No.1. The defendants filed written statement disputing the relationship of the plaintiffs with Surjan Singh son of Niranjan Singh. They also disputed that the C.R. No. 4558 of 2011 -2- plaintiffs are daughters of Surjan Singh son of Niranjan Singh. Further, the defendants had denied that Gurnam Kaur was grandmother of the plaintiffs and wife of Niranjan Singh. Thereafter, the issues were framed. The plaintiffs led their evidence. When the evidence of the defendants started, the plaintiffs found one registered Will dated 14.5.1964 executed in favour of Surjan Singh son of Niranjan Singh by his maternal grandfather Harnam Singh and one another registered Will dated 9.4.1996 executed in favour of the plaintiffs by their grandmother Smt. Gurnam Kaur and copy of order dated 26.7.1961 passed by Judicial Magistrate Ist Class, Ludhiana vide which the property of Niranjan Singh was attached in maintenance case filed by his wife Gurnam Kaur. Thereafter, the plaintiffs-petitioners filed an application for leading additional evidence to prove the said two registered Wills, the order dated 26.7.1961 and the jamabandi for the year 1992-93. The said application was contested by the defendants by filing reply alleging therein that the said application was filed by the plaintiffs only to delay the disposal of the suit and to harass the defendants. The trial court vide order dated 22.4.2010 dismissed the said application against which CR No. 4473 of 2010 was filed in this Court. This Court while setting aside the said order on 25.3.2011 had remanded the case to the trial court for deciding the application afresh as it was noticed that the earlier application was primarily dismissed on the ground of delay. The trial court after hearing the arguments did not find any merit in the application for additional evidence and dismissed the same vide order dated 7.6.2011. Hence, the present petition. 3. I have heard learned counsel for the parties and perused C.R. No. 4558 of 2011 -3- the record with their assistance. 4. Learned counsel for the petitioners submitted that the evidence which is now sought to be led was essential for the just decision of the case as the relationship of the plaintiffs with Niranjan Singh had been disputed by the defendants in the written statement and in order to establish the same, the additional evidence was required to be led. Reliance was placed on the decision of the Apex Court in K.K. Velusamy v. N. Palanisamy, 2011 (2) RCR (Civil) 875 to contend that the application for leading additional evidence could not have been declined by the trial court even after omission of the provisions of Order 18 Rule 17A from the Code of Civil Procedure (In short “the Code”). 5. Controverting the aforesaid submissions, learned counsel for the defendant-respondents submitted that the trial court rightly dismissed the application for leading additional evidence. It was urged that there were no pleadings with regard to the evidence which was now sought to be led. In other words, the additional evidence was in consonance with the pleadings of the plaintiffs-petitioners. It was also submitted that no reliance to these documents in the list of reliance was placed by the plaintiff-petitioners. According to the learned counsel, there is no reference to these documents in the replication which was filed by the plaintiffs-petitioners. In such a situation, the recourse to lead additional evidence was to delay the proceedings in the suit and to cause harassment to the defendant-respondents as the suit was filed in the year 2006 and is continuing for the last five years. 6. After giving my thoughtful considerations to respective submissions of learned counsel for the parties, I do not find any merit in C.R. No. 4558 of 2011 -4- the contention of the learned counsel for the plaintiff-petitioners. 7. On the pleadings of the parties, the trial court had framed the following issues:- “1. Whether the plaintiffs are entitled for joint possession of the land measuring 180K-76 marlas prayed for? OPP 2. Whether the plaintiffs are entitled for declaration as prayed for? OPP 3. Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is barred by time? OPD 8. Whether the plaintiffs have no cause of action to file the present suit? OPD 9. Whether the plaintiffs have not come to the court with clean hands? OPD 10. Relief.” 8. The plaintiffs led their entire evidence and closed the same on 5.6.2008. Subsequently, an application dated 20.8.2009 had been filed for leading additional evidence, wherein the following evidence was sought to be led:- “i) Concerned Clerk/Record Keeper of the office C.R. No. 4558 of 2011 -5- of Honorary Sub Registrar, Ludhiana along with original will registered vide Vasika no. 80, dated 15.5.1964 executed by Harnam Singh. ii) Concerned Record Keeper of the office of Sub Registrar, Ludhiana along with registered vide Vasika No. 29 on 09.04.1996. iii) Certified copy of the judgment dt. 26.07.1961 passed by the court of Sh. Gurnam Singh, the then JMIC, Ludhiana. iv) Handwriting expert to compare the thumb impression of Gurnam Kaur on the will along with her standard signature. v) Baljinder Singh son of Joga Singh resident of village Boothgarh, witness to will dt. 09.04.96. vi) Jamabandi for the year 1992-93 of Surjan Singh of Village Boothgarh, Tehsil and District Ludhiana.” 9. Rule 17A in Order 18 of the Code was inserted by Code of Civil Procedure (Amendment) Act of 1976 to permit production of additional evidence at a later stage which was not within the knowledge of the party producing evidence or could not be produced inspite of exercising due diligence. This provision was omitted by Code of Civil Procedure (Amendment) Act, 1999 effective from 1.7.2002 as it was felt that unnecessary applications were being filed primarily to delay the conclusion of the trial. However, this does not take away inherent power of the Court to do substantial justice between the parties and C.R. No. 4558 of 2011 -6- allow any material evidence to be led by them unless it is actuated with malafides or is due to gross negligence. 10. Ordinarily, the Court may not be required to evaluate the additional evidence at the stage of deciding the application but at the same time, a duty is 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 abuse the procedural law to harass the opposite side. It is not every and all applications, howsoever frivolous it may be, are to be allowed. The Court is to ensure that the procedural law is not being misused to delay the decision of the suit and that at the same time substantial justice is done to the parties. 11. Learned counsel for the petitioners, on being put the query by the Court what is the nexus of the evidence now sought by way of additional evidence with the controversy in issue especially when there is no specific issue framed in that behalf on the pleadings of the parties, submitted that the Court is not to see the merits of the additional evidence at that stage and the trial court would weigh the same at the time of adjudicating the suit. He, however, could not demonstrate as to when the sale deed executed by Niranjan Singh in favour of Gurdial Kaur was in dispute, how the relationship of the plaintiffs with Niranjan Singh was a relevant factor and the examination of the witnesses regarding handwriting expert to compare the thumb impressions and to produce the witness of the Will, namely, Baljinder Singh was relevant for settling the dispute in question, no reply muchless satisfactory reply was furnished by him. In such a situation, the application cannot be held to be bonafide and essential for just decision of the case. C.R. No. 4558 of 2011 -7- 12. The principles of law enunciated by the Hon'ble Supreme Court in K.K. Velusamy's case (supra) are undisputed but the same have no applicability to the facts of the present case in view of the factual matrix noticed hereinabove. 13. Accordingly, there is no merit in this revision petition and the same is hereby dismissed. October 20, 2011 (AJAY KUMAR MITTAL) gbs JUDGE