IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3090 of 2007 Date of decision : 21.04.2010 Smt.Veena Sharma … Appellant Versus Naveen Sharma and another …Respondents CORAM : HON’BLE MR.JUSTICE VINOD K. SHARMA Present: Mr.Kulbhushan Sharma, Advocate for the appellant. Mr.G.S.Ahluwalia, Advocate for respondent No.2. Vinod K. Sharma, J. (Oral) This regular second appeal by the plaintiff-appellant is directed against the judgments and decrees passed by the learned courts below, vide which suit for declaration with consequential relief for mandatory injunction, filed by the plaintiff/appellant was dismissed. The plaintiff/appellant filed a suit on the pleadings that she was married with defendant No.1 according to Hindu rites and ceremonies on 17.1.1993 at Sector 9, Faridabad in the presence of friends and relatives. The parents of the plaintiff-appellant had spent more than Rs.3,00,000/- (Rupees three lacs only) at the time of marriage in terms of cash and kinds. After the marriage, defendant No.1 had taken a bank locker No.476 on rent in the joint name of the plaintiff and defendant No.1, for the purpose of keeping gold and jewellery of the plaintiff. It was the case of the plaintiff/appellant that defendant no.1 was eager to sell off the piece of land, owned jointly with the plaintiff, whenever the plaintiff resisted the illegal moves of defendant No.1, she was mercilessly beaten by him and that the physical and mental tortures of the plaintiff went to such an extent that she was RSA No.3090 of 2007 compelled to obtain a decree of divorce vide judgment and decree dated 3.6.2004 from the Court of Shri R.K. Khanagwal, learned Additional District Judge, Faridabad. The case set up by the plaintiff was that she wanted to operate the locker No.476 with defendant No.2 in the month of March/April, 2005, but she was not allowed to do so with any authority, despite showing a decree of divorce. It was case of the plaintiff that she required the articles for personal use as it was her own Istri Dhan. She also offered to pay all the dues charges/ rent of the locker. In spite of notice, defendants did not oppose the petition. The plaintiff appellant examined herself as PW-1, Brij Bhushan as PW2 and thereafter, closed the evidence. In spite of ex parte evidence, which went un- rebutted, learned trial court came to the conclusion that the plaintiff-appellant was not entitled to any relief. The plaintiff-appellant produced a copy of judgment along with decree of divorce dissolving marriage between Veena and Naveen Sharma. She had also placed letter Ex.P-2, which was the letter issued by defendant No.2 vide which operation of the locker was stopped by the bank, by directing the plaintiff-appellant to operate the locker in the presence of her husband Naveen only. The learned Courts, on the evidence, led came to the conclusion that it did not find any reason to grant permission to the plaintiff-appellant to operate the locker, as it was nowhere mentioned by her as to what kind of articles were put by her in the locker. The learned Courts further came to the conclusion, that Veena and Naveen Sharma had joint account number and had 2 RSA No.3090 of 2007 an authority to operate the locker jointly. In such circumstances, plaintiff could operate the locker in the presence of Naveen Sharma. The plaintiff/appellant had not produced any notice showing that Naveen Sharma was ever asked to operate the locker with her. The learned Courts, dismissed the suit. Along with this appeal, the plaintiff-appellant moved an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for exhibiting on record the letter dated 19.3.2007 stipulating the terms of operation of locker by the Bank. It has been averred in the application that the evidence sought to be produced is necessary to adjudicate the matter in dispute between the parties and is necessary to pronounce the judgement. Application is supported by an affidavit. The application is not opposed by the learned counsel for the bank. Consequently, the application for additional evidence is allowed. Letter dated 19.3.2007 is taken on record as Ex.’C’. During the pendency of this appeal, this Court appointed a Local Commissioner, to break open the locker and make inventory of goods lying therein. In pursuance to the order passed by this Court, lock of the locker was broken and inventory has been prepared. The report of the Local Commissioner is already on record. In pursuance to the direction issued by this Court, jewellery lying therein has been photographed, these photographs are taken on record. Mr.Kulbhushan Sharma, learned counsel appearing on behalf of the appellant contends that this appeal raises following substantial questions of law:- 3 RSA No.3090 of 2007 1. Whether the learned courts below have erred in law in denying the operation of locker to the plaintiff-appellant when she was admittedly holder of the locker? 2. Whether the judgment and decree passed by the learned court below is outcome of misreading of evidence, therefore, perverse? In support of the substantial questions of law, the learned counsel for the appellant, vehemently contended, that the averments made by the plaintiff-appellant in the plaint, that locker was taken in the joint name which was operative by “either or survivor” had gone unrebutted. There was no reason with the learned courts below to deny the relief claimed by plaintiff and to direct the bank-defendant No.2 to allow operation of the locker. Learned counsel for the appellant, further contended that averments made by the appellant also stand proved from Ex.’C’ i.e. operating instructions, issued by the bank, which show that operation was “either or survivor”. There is force in the contention of the learned counsel for the appellant. It is well settled, that unrebutted evidence is to be accepted, specially in cases, where defendant in spite of notice does not choose to appear to contest the case. The ex parte evidence, when unrebutted, was required to be accepted. It cannot be disputed that the operating instructions were “either or survivor”. Moreover, the suit was not contested by defendant No.1. First substantial question of law is, therefore, answered in favour of the plaintiff- appellant. It is held that the bank was not justified in refusing the operation of locker by the appellant. On the second substantial question of law, the learned counsel for the appellant, contended that the judgment and decree passed by the learned courts below, is outcome of misreading of evidence, inasmuch as there was 4 RSA No.3090 of 2007 unrebutted evidence, and the averments of plaintiff, in the plaint that the locker was in the joint name of the husband and the wife, with operating instructions “either or survivor”. This evidence went unrebutted, there was no reason for the learned Courts to record, a finding that the appellant could not operate the locker singly, merely because the locker was in the joint name of the husband and wife. The judgment and decree is therefore outcome of misreading of evidence, as the locker was to be operated as per instructions. The second substantial question of law is also answered in favour of the plaintiff- appellant. Consequently, this appeal is allowed. Judgments and decree passed by the learned courts below are set aside and the suit filed by the plaintiff is ordered to be decree with no order to costs. Keeping in view the fact that the items of the locker are now in custody of the Bank Manager, the same may be released to the plaintiff/appellant, subject to payment of Rs.10,000/- (Rupees ten thousand only) towards costs for breaking open the locker and money spent for taking photographs etc., in pursuance to the order passed by this Court. Appeal allowed. [ Vinod K. Sharma ] Judge 21.04.2010 sd 5