Regular Second Appeal No. 4158 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 4158 of 2009 Date of Decision: 19.7.2011 Shanti Devi …Appellant Versus Brahm Dutt and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Amarjit Markan, Advocate for the appellant. Mr. Lokesh Sinhal, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) Appellant Shanti Devi and respondent No.4-Anguri Devi had instituted a suit for declaration stating therein that they are owner in possession of the suit land as mentioned in para No.1 of the plaint being legal heirs of Devi Sahai. They pleaded that respondents/defendants No.1 to 3 had obtained a decree dated 9.10.1993, passed in Civil Suit No. 708 dated 26.7.1993 by way of fraud. It is stated that in the said suit, Devi Sahai was impersonated as he had never engaged any Advocate nor submitted vakalatnama or written statement in the Court of Sub Judge Ist Class, Palwal, who decided Civil Suit on 27.11.1993. In the present regular second appeal, the controversy is limited. Mr. Amarjit Markan, Advocate, appearing for the appellant, has submitted that the lower Appellate Court, while deciding the appeal vide its judgment dated 12.2.2009, had discarded the evidence of Regular Second Appeal No. 4158 of 2009 2 Forensic Science and Handwriting Experts examined by both the parties holding that no final opinion could be given from the disputed and standard (admitted) thumb impressions of Devi Sahai. The Court gave no credence to the evidence of PW.4 S.P.Singh, Handwriting and Finger Print Expert, examined by the appellant/plaintiffs and DW.9 V.C. Misra, Handwriting Expert, examined by the defendants. The lower Appellate Court, in para 17 of its judgment, held that the Expert had given the opinion in favour of his master who engaged him. Mr. Markan further submitted that an application was submitted by the plaintiffs in the lower Appellate Court on 16.4.2007 wherein a prayer was made that thumb impressions of Devi Sahai be got compared from the Director, Forensic Laboratory Handwriting and Finger Print Expert, Madhuban, or some other Government Agency. He further submitted that this application is to be considered as an application for additional evidence. He further submitted that while deciding the appeal, the lower Appellate Court had not decided the application which is a part of the paper book of present appeal as Annexure P1. While issuing notice of motion on 3.5.2010, a Co-ordinate Bench of this Court had observed as under;- “...The learned counsel for the appellants contends that the application for leading additional evidence was filed before the learned lower Appellate Court, which remained undecided...” Mr. Lokesh Sinhal, Advocate, appearing for the respondents/defendants, has submitted that an application (Annexure Regular Second Appeal No. 4158 of 2009 3 P1) cannot be termed as an application for additional evidence as neither in the head note of the said application nor in prayer clause thereof, it is stated that it is for leading any additional evidence. Furthermore, it is submitted that from a perusal of the orders passed by the Court on various dates, it is not discernible that learned counsel for the appellant/plaintiffs had come forward to argue the application. In support of this contention, a reliance has been placed upon Mahavir Singh v. Naresh Chandra 2001(1) Recent Civil Reports 454 to contend that the appellant/plaintiff had failed to make out grounds for which the additional evidence could be led. To controvert the arguments raised by learned counsel for the respondents, Mr. Markan has relied upon Hakam Singh v. State of Haryana and Others 2008 (4) Recent Civil Reports 422 to say that in case appeal is decided without deciding the application for additional evidence, the matter is required to be remitted to the Court, who has not decided the application. In support of this, further reliance has been placed upon Gurinder Singh and Others v. Kundan Lal 2005(2) Civil Court Cases 128 (P&H) to say that in case an application to lead additional evidence is pending and when the same is not decided, it would amount to miscarriage of justice. According to learned counsel for the appellant, substantial question of law which arises for consideration of this Court is “whether the Additional District Judge, Faridabad (lower Appellate Court) could have decided and disposed of the appeal without deciding an application (Annexure P1).” After hearing learned counsel for the parties, I am of the view Regular Second Appeal No. 4158 of 2009 4 that even though in the application (Annexure P1), it is not specially stated that this has been filed under Order 41 Rule 27 CPC and the same has not been termed as an application for leading additional evidence, yet the contents thereof leave no doubt that it has been filed to examine Government Expert for getting the thumb impressions compared. It is an application essentially for leading additional evidence. It has been held by the Courts that technicalities cannot be allowed to triumph over the substantial justice. In the present case, appellant/plaintif and plaintiff/respondent No.4, who are the daughters of Devi Sahai, are being deprived of the estate of their father as he had suffered a decree on the basis of family settlement in favour of his nephews. If the Government Expert is examined, the truth will come out or at least the appellant/plaintiff is satisfied that an inquiry has been made. Thus, in these circumstances, the judgment and decree dated 12.2.2009, passed by the Court of Additional District Judge, Faridabad, are set aside. The matter is remitted back to the lower Appellate Court to decide the said application (Annexure P1) and thereafter decide the appeal afresh in accordance with the provisions of law. However, as a matter of abundant caution, it is clarified that anything said herein shall not be construed as an expression of opinion touching the merits of the case. The parties through their learned counsel shall appear before the lower Appellate Court on 30.8.2011. (Kanwaljit Singh Ahluwalia) Judge July 19, 2011 “DK”