IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 2719 of 2007 Date of Decision: 17.5.2010 Kasturi Lal. ....... Appellant through Shri Ashwani Talwar, Advocate. Versus Smt.Kaushalya Devi and others. .......Respondent nos. 3 to 5 through Shri Deepak Gupta, Advocate. None for respondent nos. 1 & 2. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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 the Digest? .... Mahesh Grover,J. The plaintiff is aggrieved by the findings recorded by Civil Judge (Junior Division), Jagadhri (hereinafter described as `the trial Court') and the District Judge, Yamuna Nagar (referred to hereinafter as `the first appellate Court') in their respective judgments dated 1.3.2006 and 5.6.2007 rendered in the suit and the appeal filed by him. In the suit filed by him, the plaintiff had sought a decree for separate possession by way of partition of the suit property. It was pleaded that he along with the defendants was a member of Joint Hindu Family and R.S.A.No.2719 of 2007 -2- .... that previously, Ram Lal, his father, was owner in possession of the house in question; that after the death of Ram Lal, the plaintiff and defendant nos. 1 to 3 inherited 1/5th share each, whereas defendant nos. 4 to 6 inherited it to the extent of 1/5 share in equal shares; that defendant nos. 4 and 1 in collusion with each other had not been allowing the plaintiff to derive full benefit of his 1/5th share in the house in question; that the defendants are having influence with the local police and in connivance with each other, they had obtained his signatures on blank papers which were, in all probabilitys, was likely to be misused. Defendant no.1- Smt. Chanan Devi is the mother, whereas defendant no.2- Smt. Kaushlaya Devi and defendant no.4-Smt. Swarn Rani are sisters of the plaintiff. Upon notice, they had appeared and filed written statement admitting the claim of the plaintiff. Defendant no.4-Smt.Sobha Rani is the widow and defendant nos.5 & 6 are minor sons of Madan Lal, brother of the plaintiff. A joint written statement was filed by them contesting the suit and denying any claim of the plaintiff over the house in question. It was pleaded that the plaintiff was not related to them in any manner, but they admitted that the suit property belonged to Ram Lal; that after the death of Ram Lal, the suit property was inherited by defendant no.1 to the extent of ½ share,whereas the remaining ½ share was inherited by defendant nos. 4 to 6 in equal shares; that when the plaintiff in collusion with defendant nos. 1 to 3 had tried to obtain the property by force, as a result of which the police & respectables were involved and a compromise was effected in which ½ R.S.A.No.2719 of 2007 -3- .... share of defendant nos. 4 to 6 was admitted and defendant no.1 had also agreed to sell her share to them for a consideration of Rs.18,000/-. The pleadings of the parties gave rise to the following issues on which they led evidence:- 1. Whether suit property is joint in which the plaintiff is joint owner in possession to the extent of 1/5 share?OPP 2. Whether plaintiff is not the real son of Sh.Ram Lal?OPD 3. Whether defendant no.1 is joint owner in possession of suit property to the extent of ½ share and defts. No. 4 to 6 are joint owner in possession of the remaining ½ share?OPD 4. Whether there has been some agreement ever compromising between the defendant no.1 and defendant no.4, if so, to what effect?OPD 5. Whether signatures of the plaintiff were obtained forcibly on blank papers under coercion by police agency?OPP 6. Whether plaintiff has no locus standi to file the present suit?OPD 7. Whether suit is not maintainable as alleged?OPD 8. Relief. The issue which gained primacy was the issue regarding relationship of the plaintiff with defendant no.1-Smt.Chanan Devi as it was denied by defendant nos. 4 to 6 that he was her son. After appraisal of the evidence on record, the trial Court dismissed the suit. It was held that there was no material to show that the R.S.A.No.2719 of 2007 -4- .... plaintiff was the son of defendant no.1 from the loins of Ram Lal. It was concluded that prior to her marriage with Ram Lal, defendant no.1 had married Gurdittamal and the plaintiff was born from their wedlock and that there was nothing to prove that he was son of defendant no.1 from the loins of Ram Lal. The claim of the plaintiff was, thus, declined. Before the first appellate Court, an attempt was made by the plaintiff to lead additional evidence which was in the shape of voters' list and original copy of Identification Certificate of the plaintiff issued by M/S Adarsh Metal Industries, Jagadhri; original receipts issued by the Inspector, Weight & Measurement Department and Judicial Magistrate Ist Class, Jagadhri; original passbooks issued by the State Bank of Patiala and copy of order for training issued by the Director of Industries, Punjab. It was intended by the plaintiff to show from these documents that he was the son of Ram Lal as they were old documents. However, the application was declined on 4.6.2007 and the appeal itself was dismissed on 5.6.2007. Learned counsel for the plaintiff-appellant, while assailing the findings contained in the impugned judgments, has contended that the additional evidence has been wrongly declined as these documents were essential for proper adjudication of the matter and the first appellate Court ought not to have declined such a prayer. It was further contended that defendant nos. 1 to 3, who are the mother and sisters of the plaintiff had filed their written statement acceding to his claim and from this, the Courts below should have drawn an inference that he was son of Ram Lal. It was submitted that in the plaint, a specific plea was raised that the plaintiff was R.S.A.No.2719 of 2007 -5- .... son of Smt.Chanan Devi which fact was admitted by her in the written statement and in view of this admission, the denial by defendant no.4, who is sister-in-law of the plaintiff (brother's widow) and her sons, who are obvious beneficiaries of such denial of relationship, could not have been relied upon in preference to the admission of the mother. It was further submitted that the additional evidence, if permitted to have been adduced, could have conclusively established the relationship of the plaintiff with Ram Lal and the plea of defendant nos. 4 to 6 regarding his not being the son of Ram Lal and being the son of Gurdittamal would have been demolished. It was, thus, argued that the findings of the Courts below are perverse and are liable to be set aside. On the other hand, learned counsel for respondent nos. 3 to 5 has contended that in view of the fact that concurrent findings have been recorded which cannot be termed to be perverse, no interference can be made with the judgments of the Courts below. I have thoughtfully considered the rival contentions and have gone through the whole record which was summoned. The Courts below have essentially declined the claim of the plaintiff on the ground that he was not proved to be the son of Chanan Devi from the loins of Ram Lal. It is to be noticed that the mother of the plaintiff, namely, Chanan Devi and his sisters, namely, Kaushalya Devi and Swarn Rani, who were impleaded as defendant nos. 1 to 3, had filed a joint written statement admitting his claim. Their admission could not have been brushed aside lightly keeping in view the fact that denial was coming from a R.S.A.No.2719 of 2007 -6- .... relation, who is sister-in-law of the plaintiff who stood to benefit the most by denying such relationship as it was she, who had got the major chunk of the property in question. In any eventuality, the plaintiff made an attempt to bring on record some more material which could have indicated that he was the son of Ram Lal. It is a settled principle of law that an application under Order 41 Rule 27 of the C.P.C. should be considered by evaluating and weighing the facts in their totality to see as to whether the evidence sought to be produced is necessary for proper adjudication of the matter. In K.Venkataramiah Versus A. Seetharama Reddy and others, AIR 1963 S.C. 1526; the Apex Court observed as under:- “Under R.27(1), the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment”, but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R.27(1)(b) of the Code.” In North Eastern Railway Administration, Gorakhpur Versus R.S.A.No.2719 of 2007 -7- .... Bhagwan Das (D) By Lrs., 2008(3) Civil Court Cases 226 (S.C.), their Lordships of the Supreme Court observed as under:- “17. It is manifest that in the present case, the High Court did not examine the record of the case with the thoroughness which was expected at the time of disposal of the pending applications. On a perusal of the impugned decisions, it is clear that the High Court was not even aware of the pendency of the application under Order 41 Rule 27 CPC seeking leave to adduce additional evidence. A perusal of the documents, which came to light pursuant to the directions given by the High Court on 3rd April,2002, prima facie, goes to show that these are likely to widely affect the decision of the Court in one way or the other. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will have material bearing on the core issue, namely, whether the decree dated 13th March,2001 is a nullity, having been allegedly obtained by concealing material facts and playing fraud on the Court. It is trite that a judgment or decree by the first court or by the highest court – obtained by playing fraud on the Court is a nullity and non est in the eyes of law. (See S.P.Chengalvaraya Naidu v. Jagannath 1994(2) Civil Court Cases 131 (S.C.) : AIR 1994 SC 853 and India Household and Healthcare Ltd. v. LG Household & amp; Healthcare Ltd., 2007(5) SCC 510). In any R.S.A.No.2719 of 2007 -8- .... event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in the light of the legal position, briefly set out hereinabove. In view of the afore-noted factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained.” In Ram Niwas & another Versus Roshan & others, 2006(2) P.L.J. 692 (P&H), this Court in paragraph 18 of the judgment observed as under:- “18. The record referred to and sought to be adduced by way of additional evidence was relevant for the purpose of determining the controversy as this would have determined both the nature of possession of the plaintiff-respondents and the status of the appellants qua the suit property. If Ganga Ram and Ganga Sahai were held to be the same person on the basis of the evidence which was sought to the adduced by the appellants, then obviously the plea raised by the appellants that Ganga Sahai was a tenant in the property would be established. R.S.A.No.2719 of 2007 -9- .... Meaning thereby that the possession of the respondents would be permissive.” In Jeeto @ Smt.Manjit Kaur Versus Union of India, 2007(4) Civil Court Cases 678 (P&H), this Court again observed as under:- “11. The learned trial Court was not correct in dismissing the application merely on the ground of delay when the evidence sought to be produced was essential for the just and proper adjudication of the case as the relationship of the parties was in dispute. As regards the contention of the learned counsel for respondent No.5, the same cannot be the basis for rejection of the present revision petition as the parties have to prove their case before the trial Court. Consequently, this revision petition is allowed, the impugned order is set aside and the application moved by the petitioner for additional evidence is allowed. However, it shall be subject to payment of Rs.2000/- as costs.” In view of the afore-quoted judgments, it is clear that the application for additional evidence can be allowed at any stage, provided such evidence is essential for just decision of the case. As noticed above, the plaintiff based his claim regarding his entitlement of inheritance to the estate left by Ram Lal on the fact that he was son of Ram Lal. Therefore, it was imperative to evaluate any material which could have come on record to help the appellate Court to arrive at proper conclusion. That having not been done because of the dismissal of R.S.A.No.2719 of 2007 -10- .... the application under Order 47 Rule 27 of the C.P.C., a serious prejudice has been caused to the case of the plaintiff. In my opinion, the following substantial question of law arises for consideration of this Court:- “Whether the application under Order 41 Rule 27 of the C.P.C. could have been declined by the first appellate Court simply on the ground that it was filed at a belated stage?” Because of the reasons which have been given above and which are supported by the judgments of the Apex Court and this Court referred above, I am of the opinion that the appeal deserves to succeed and the matter deserves to be remanded back for consideration of the evidence which the plaintiff wanted to adduce by way of additional evidence. Accordingly, the appeal is allowed, the application for additional evidence moved by the plaintiff is accepted and the matter is remanded back to the first appellate Court with a direction to get a report from the trial Court qua the documents sought to be placed on record by way of additional evidence and then answer the issue afresh regarding his relationship with Ram Lal. For this view, I am fortified by the following observations of the Apex Court in H.P.Vedavyasachar Versus Shivashankara, (2009) 8 S.C.C. 231:- “When an application for adducing additional evidence is allowed, the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do R.S.A.No.2719 of 2007 -11- .... so. The High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 23, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case.” The entire exercise shall be carried out by the Courts below within a period of six months after the receipt of a copy of this judgment keeping in view the fact that the matter is pending since the year 1996. May 17,2010 ( Mahesh Grover ) “SCM” Judge