RSA No. 4204 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 8322-C of 2009 and RSA No. 4204 of 2006 (O&M) Date of Decision: July 29, 2009 Gurdial Singh ...... Appellant Versus Jaimal Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Ajay Pal Singh, Advocate for the appellant. Mr.K.S.Chahal, Advocate for respondent No.1. Mr.Onkar Singh, Advocate for respondent No.2. **** 1. Whether Reporters of local papers 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? Ajay Tewari, J. CM No. 8322-C of 2009 CM allowed. Persons mentioned in para 3 of the application are directed to be impleaded as legal representatives of appellant Gurdial Singh. Registry to make necessary correction in the memo of parties. RSA No. 4204 of 2006 This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of respondent Jaimal Singh whereby he RSA No. 4204 of 2006(O&M) 2 challenged the consent decree dated 13.12.1993 alleged to have been suffered by him in favour of the appellant. The following questions have been proposed:- a) Whether the consent decree dated 13.12.1993 is a legal and valid decree and can be set aside on the basis of an affidavit? b) Whether the adverse inference can be drawn when the plaintiff intentionally does not step into the witness box? c) Whether the decree passed on the basis of the family settlement requires registration? d) Whether the learned courts below have misread and misconstrued the evidence produced by both the parties? It would be seen that questions No. (a), (b) and (d) are pure questions of fact. Learned counsel has taken me through the findings of the courts below but I have not been persuaded that the same have been arrived at either on the basis of no evidence or on the basis of such misreading of evidence so as to render the same perverse. Both the Courts have relied on affidavit dated 24.7.95 wherein the appellant categorically admitted that the 1993 decree which he had obtained was illegal and that the respondent continued to be in possession of the land in dispute. Learned counsel for the appellant has argued that in fact, both the Courts have not accepted the plea of the respondent that he never appeared before the court but rather have accepted the plea of the appellant that respondent had duly appeared before the Court in 1993. It may be noticed that even on this score there is evidence which can point to the fact that the respondent did not appear and that the thumb impressions on the RSA No. 4204 of 2006(O&M) 3 written statement and on the Vakalatnama were discrepant. Be that as it may, in my opinion the major determining factor in this case, as rightly held by the Courts below, is the affidavit executed by the appellant himself. The explanation trotted out that it was obtained under pressure from the police has not been established by any independent evidence. The argument that by not appearing in the witness box an adverse inference must be drawn against the appellant cannot be laid as an inflexible rule of law being as it is basically, a rule of evidentiary prudence which can be disregarded in appropriate cases, of which, in my opinion this is one such. As regards question No. ( c ) the same does not need to be decided in view of the decision on questions No.(a) and (b). Consequently this appeal is dismissed. No costs. Since the main case has been decided, all the pending Civil Misc. Applications are disposed of. (AJAY TEWARI) JUDGE July 29, 2009 sunita