IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 491 of 2009 Date of Decision : October 27, 2009 Shri Sant Ram Petitioner Versus Shri Amar Chand Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ramakant Sharma, Advocate, for the petitioner. For the respondent : Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate, for the respondent. Sanjay Karol, J. (Oral) The petitioner herein, who was defendant before the trial Court and respondent before the First Appellate Court has assailed the order dated 20.6.2009 passed by the District Judge, Kangra at Dharmshala, H.P. allowing the application filed under Order 41 Rule 27 C.P.C. by the plaintiff, respondent herein and appellant before the First Appellate Court. In terms of the impugned order the First Appellate Court has allowed the plaintiff to place on record the original Will dated 9.1.1993 executed by Smt. Jhanjo Devi in his favour. During trial 1 Whether reports of Local Papers may be allowed to see the judgment? 2 the Will already stands proved in the statement of Sh. Bansi Lal (PW-3). The photo-copy of the same, without any objection on the part of the defendant/petitioner herein, was also exhibited as Ext. PW 3/A. The plaintiff’s suit for declaration and consequential relief of injunction to the effect that he alone is owner in possession of the suit land was opposed by the defendant on the ground that deceased Smt. Jhanjo Devi had executed a Will in his favour, who alone is entitled to inherit the suit property. Defendant also filed counter claim praying for a decree of title based on the same. The Trial Court, based on the pleadings of the parties framed the following issues: “1. Whether the plaintiff is entitled to the relief of declaration, as prayed for? OPP 2. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether the plaintiff is estopped from filing the present suit, as alleged? OPD 4. Whether the plaintiff has no cause of action against the defendant, as alleged? OPD 5. Whether the suit is barred by period of limitation, as alleged? OPD 6. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 6(a) Whether Smt. Jhanjo Devi executed a valid Will in favour of the plaintiff? If so its effect? OPP 6(b) Whether the Will dated 9.1.93 executed by Jhanjo Devi in favour of the plaintiff is the last Will? If so its effect? OPP 3 6(c) Whether Jhanjo Devi has executed a valid Will in favour of the defendant on 21.12.92? If so its effect? OPD 6(d) Whether the Will propounded by the defendant in his favour is a forged and frivolous document, as alleged? OPP 6(e) Whether the Will propounded by the plaintiff in his favour is a result of fraud and mis- representation and is a forged document, as alleged? OPD 6(f) Whether the counter-claim filed by the defendant is not maintainable, as alleged? OPP 7. Relief.” The Trial Court dismissed the plaintiff’s suit and decreed the counter claim in terms of judgment and decree dated 4.1.2007. Appeal against the same was preferred by the plaintiff and during the hearing of the same he filed the application in question. Undoubtedly the Apex Court in Basayya I. Mathad versus Rudrayya S. Mathad and others, (2008) 3 SCC 120 has held that the parties to the proceeding can produce a document or additional evidence even at the appellate stage subject to fulfilment of the requirements under Order 41 Rule 27 C.P.C. In the instant case the photocopy of the Will was duly exhibited without any objection on the part of the defendant. In any event reference thereof is found in the statement of PW-3. The controversy in issue between the parties is obviously with regard to the execution of the Will of Smt. Jhanjo Devi. The suit is primarily 4 based on Will dated 9.1.1993 whereas the counter claim is based on Will dated 21.12.1992 left by Smt. Jhanjo Devi. Thus keeping in view the expediency, interest of justice and to dispose of the appeal properly and effectively, the First Appellate Court allowed the plaintiff to place the document on record. The only objection taken by the defendant before the trial Court was that the plaintiff was trying to fill up the lacuna which rightly stood rejected by the Court below. The Will already stood proved by the plaintiff. The plaintiff has acted on the advice tendered to him both before the Trial Court as also the First Appellate Court. No new case is required to be set up. Thus the Court below has rightly held that no prejudice is going to be caused to the defendant if the document is allowed to be placed on record. The observations of the First Appellate Court with affirmation are reproduced as under: “… I am of the view that at this stage the applicant intend to place on record the original Will, which is essential in the interest of justice and in order to dispose of the appeal properly, effectively and to impart the substantial justice and to give an end of the controversy in between the parties. I also of the view that the contents of the Will were already in the knowledge of the non applicant, as the photo copy of the Will in question had already been placed on record, which is Ext. PW3/A.” 5 No case for interference is made out and the petition as such is disposed of. CMP No. 604 of 2009 Disposed of. (Sanjay Karol), Judge. October 27, 2009 (PK)