C.R. No. 962 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh … C.R. No. 962 of 2009 Date of decision: March 10,2009 Munna Lal son of late Shri Banwari Lal ..Petitioner Versus Sadhu Ram and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. N.S.Shekhawat, Advocate for the petitioner. Mr. Pritam Saini, Advocate for the respondents ... Rakesh Kumar Garg,J. This is defendants revision petition challenging the order dated 31.1.2009 passed by the Civil Judge (Senior Division), Narnaul, whereby application for leading additional evidence filed by respondent/plaintiff Nos.1 to 3 has been allowed. As per the averments made in this revision petition, plaintiffs filed a suit for declaration regarding the suit land on the basis of a registered Will dated 9.12.1988 (Ex.P1) allegedly executed by Jhutha Ram in favour of the plaintiffs and claimed title over the properties left by him. The aforesaid Will was scribed by Roshan Lal and was witnessed by Krishan Sanghi, Lambardar and Kurda Ram and was registered by Banwari Lal, the then Sub Registrar. Jhutha Ram died on 24.1.2001 and the present suit was filed on 22.1.2003. Issues in the suit were framed on 2.6.2003. Three Pws. were examined on 17.9.2003. On 6.10.2004, two PWs were examined. The plaintiffs wanted to examine Vijay Kumar Rastogi handwriting expert to prove the signatures of Krishan Sanghi on the Will (Ex.P1). However on account of his illness, the case was adjourned to 16.11.2004 for producing the plaintiff evidence C.R. No. 962 of 2009 2 at his own risk and responsibility. On 16.11.2004, three PWs were examined. Kurda Ram PW 9 was also examined partly. On 29.11.2004, further examination of Kurda Ram PW9 was completed. On 7.12.2004, PW 10 was examined. No further evidence of the plaintiff was present. Learned counsel for the plaintiff made his statement that he has closed his evidence except the handwriting expert and also filed an application for adjournment on the ground that Mr. Vijay Kumar Rastogi Handwriting Expert had gone to Bombay all of a sudden and for that reason could not be examined. Plaintiffs were granted last opportunity to examine handwriting expert at his own responsibility on 20.12.2004 failing which evidence of the plaintiff was to be deemed to have been closed. On 3.01.2005, instead of Vijay Rastogi, the plaintiff produced Shri Shamsher Singh Malik, handwriting and finger print expert. Still the counsel for the plaintiff made a statement that he has to produce voter list of Ward No.6 as well as certified copy of house tax register and closed his remaining evidence. The case was adjourned to 29.1.2005 for the evidence of the petitioner/defendant reserving the right of the plaintiff to produce the aforesaid document stating that if the plaintiff failed to produce the document on the date fixed, in that event the documentary evidence of the plaintiff shall be treated as closed. On 18.5.2005, evidence of defendants was closed and the case was adjourned to 28.5.2005 for rebuttal evidence if any and the arguments. On 28.5.2005, no rebuttal evidence of the plaintiff was present. On 9.6.2005, plaintiffs moved an application to produce rebuttal evidence which was dismissed. The aforesaid order was challenged by the petitioners in this court vide Civil Revision No.3240 of 2005, which was accepted vide order dated 14.6.2005 and opportunity was granted to the plaintiff to adduce rebuttal evidence. On 3.2.2006, petitioner submitted documents Ex.P2 to P-7 in rebuttal evidence. At this stage plaintiffs filed another application for granting permission to exhibit sale deed dated 24.5.1965. The petitioner raised no C.R. No. 962 of 2009 3 objection to the application filed by the plaintiff for additional evidence and on 10.2.2006, the plaintiff tendered additional evidence and closed his additional evidence as well as rebuttal evidence vide his statement of the even date. Thereafter, the matter was posted for arguments. Thereafter on 5.11.2007, i.e., after about 1 year and 7 months of closure of rebuttal evidence and leading additional evidence, the present application was filed by the petitioner to lead further additional evidence stating that Shri Krishan Sanghi, Numberdar had died about 7 to 8 years ago. The son of Shri Krishan Sanghi, Numberdar i.e., Gopal Krishan, who was examined by the plaintiff as PW4 for proving the signature of Shri Krishan Sanghi, Numberdar on the Will Ex.P1 has not given any categoric statement regarding the signatures of his father on the disputed Will. The applicant/plaintiff has stated that now he has come to know that Shri Krishan Sanghi, Numberdar during his life time had filed the suit titled as Shri Krishan Vs. Bhateri Devi in the court of Senior Sub Judge, Narnaul. The plaint and the Vakalatnama in the aforesaid suit bear the signature of Shri Krishan Sanghi, Numberdar. He (applicant/plaintiff) with the help of aforesaid signature of Shri Krishan Sanghi on the Vakalatnama and the plaint wants to prove that the Will Ex.P1 bears the signature of Shri Krishan Sanghi, Numberdar. Consequently, he wants to tender the evidence of an expert who would compare the signature of Shri Krishan Sanghi, Numberdar on the Vakalatnama and the plaint with that on the Will Ex.P1. He also wants to tender the testimony of Shri Mukat Bihari Sanghi, Advocate who was the counsel of Shri Krishan Sanghi, Numberdar in the above stated suit, to prove that the Vakalatnama and the plaint bears the signature of Shri Krishan Sanghi, Numberdar. The applicant/plaintiff has further stated that the Will Ex. P1 is a registered Will. The Sub Registrar I.e., Shri Banwari Lal in whose presence the Will Ex.P1 was registered had expired and he wants to tender the death certificate of Banwari Lal for bringing on record the fact of death of Banwari Lal. The applicant/plaintiff has further stated that he also wants to place on record the voter-list in additional evidence for proving that Jutha Ram the father of the C.R. No. 962 of 2009 4 parties to the suit was staying with the plaintiff. The said application was opposed by the petitioners/defendants stating therein that the present application was just an abuse of the process of law and the same has been filed by the plaintiff for adopting dilatory tactics. The trial Court vide impugned order allowed the aforesaid application granting one opportunity to the plaintiff and respondents for adducing the aforesaid evidence and to tender the evidence of Shri Mukut Bihari Sanghi, Advocate, evidence of the expert and the death certificate of Banwari Lal Sub Registrar observing as under:- “The authenticity of the Will Ex.P1 is in dispute. It is not disputed that the attesting witness of the Will Ex.P1 Shri Krishan Sanghi, Numberdar has expired. The son of Shri Krishan Sanghi who has appeared as PW4 in his testimony has stated that, it appears that the will Ex.P1 does not contain the signature of his father (Shri Krishan Sanghi). The aforesaid testimony of PW4 shows that PW4 has not categorically denied the signature of his father (Shri Krishan Sanghi) on the Will Ex.P1. Consequently, for the just decision of the case, it is essential to know whether or not the Will Ex.P1 bears the signature of Shri Krishan Sanghi as an attesting witness. There is nothing on record to show that the applicant/plaintiff had the knowledge of the above stated suit titled as Shri Krishan Versus Smt. Bhateri Devi prior to the date of the application. In the ruling titled as Salem Advocate Bar Association, Tamil Nadu Vs. Union of India 2005(3) RCR (Civil) 530.It has been stated “Court has inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence- Deletion of Order 18 Rule 17A by amendment Act 2002 has not affect on power of Court to allow additional evidence”. Hence it would be in the interest of justice if the plaintiff is allowed to tender the evidence of Shri C.R. No. 962 of 2009 5 Mukut Bihari Sanghi, advocate to prove that the plaint and the Vakalatnama of the suit titled as Shri Krishan Sanghi Vs. Smt. Bhateri Devi bears the signature of Shri Krishan Sanghi Numberdar and that an expert for comparing the signature on the aforesaid Vakalatnama and plaint with that of the Will in dispute Ex.P1 to prove whether or not the Will bears the signature of Shri Krishan Sanghi, Numberdar. Taking into consideration the argument of the applicant/plaintiff counsel and the fact that the death certificate is per se admissible therefore the applicant/plaintiff is also allowed to tender to death certificate of Banwari Lal Sub Registrar in additional evidence. Consequently, the above stated application filed by the applicant/plaintiff stands allowed. The applicant/plaintiff is allowed to tender the evidence of Shri Mukut Bihari Sanghi, Advocate, evidence of the expert and the death certificate of Banwari Lal Sub Registrar. Only one opportunity would be granted to the plaintiff for adducing the aforesaid evidence. Thereafter defendant too shall be given opportunity to adduce his evidence vis a vis the above stated plaintiff’s evidence. Now the case is adjourned to 13.3.2009 for the aforesaid purpose of the plaintiff evidence.” Challenging the aforesaid order of the trial Court, learned counsel for the defendants/petitioners has vehemently argued that from the undisputed facts of the case, as narrated above, it is crystal clear that the plaintiff- respondents were given ample opportunities to prove their case and this application is nothing but an abuse of process of law and a dilatory tactics adopted by the plaintiff/respondents. It was further argued by the counsel for the petitioner that it is settled principle of law that additional evidence cannot be allowed to fill up the C.R. No. 962 of 2009 6 lacuna left in the case of the plaintiffs. The application for additional evidence was filed at a belated stage and the same cannot be allowed . It was also argued on behalf of the petitioner that the plaintiff/respondents were well aware of their case. Onus to prove the Will was upon them and all the facts and evidence sought to be produced in the case by way of additional evidence was to their knowledge earlier and no additional evidence can be permitted by reopening affirmative evidence, after closing of evidence by the defendant as it would result into great prejudice to the defendants. In support of his case, learned counsel for the petitioner has relied upon judgment of this court in the case of Sachin Versus Smt. Sunita Vashisht and others 2005(2) R.C.R. (Civil) 481 and Vinit Kumar Behl Versus Smt. Ruchi 2003(2) P.L.R. 270 and has prayed that Civil Revision be accepted and the impugned order be set aside. On the other hand, learned counsel appearing on behalf of the plaintiff-respondents has strenuously argued that where the Court itself has felt the necessity of additional evidence for just and proper decision of the case. Power to permit additional evidence when allowed cannot be held wrongly exercised and no interference can be made in the order passed. Learned counsel also argued that the court has inherit powers to allow the additional evidence which is a material piece of evidence and which goes to the root of the matter and is required for just and proper adjudication of the case. Relying upon the judgments of this court in the case of Basant Raj Versus Kaushal Kishore 2005(3) P.L.R. 76, Pawan Kumar Versus Raj Kumar and others 2007(1) R.C.R. (Civil) 385, and Chattar Singh Versus Mehar Singh 2002(1) R.C.R. (Civil) 757, learned counsel argued that in view of the facts stated above, no case is made out for interference in the impugned order exercising jurisdiction of this Court under Article 227 of the Constitution of India. I have heard learned counsel for the parties. Undisputedly, the authenticity of the Will Ex.P1 is in dispute. The aforesaid Will could be proved from the evidence of marginal witnesses of the Will i.e., Krishan Sanghi Lambardar who had since expired and Kurda Ram. It is C.R. No. 962 of 2009 7 also not in dispute that Kurda has already appeared as a witness of the plaintiffs as PW9 and has not supported the case of the plaintiff-respondents. Krishan Sanghi the other attesting witness of the Will had since expired. Admittedly, his son Gopal Krishan appeared as PW4 and in his testimony, he did not deny the signatures of Krishan Sanghi on the Will Ex.P1 categorically. It is also not in dispute that plaintiff-respondents were given ample opportunity to lead evidence to prove their case as narrated in the foregoing paras. On 27.8.2004, the plaintiff-respondent wanted to produce Vijay Kumar Rastogi as Hand Writing Expert to prove the signatures of Krishan Sanghi attesting witness on the Will Ex.P1. However, thereafter, vide order dated 3.1.2005, instead of Vijay Kumar Rastogi, he was allowed to examine Shamsher Singh Malik, Handwriting Expert. Thereafter also vide order passed in Civil Revision No.3240 of 2005; he was allowed to tender rebuttal evidence. Again, petitioner was granted an opportunity to lead additional evidence on 10.2.2006 and thereafter the evidence of the plaintiff-respondent was closed on the basis of his statement and it is thereafter that after 1 year 7 months of the closure of his rebuttal additional evidence, the present application was filed for leading additional evidence. From these facts, it is crystal clear that the plaintiff-respondents who had already been granted so many opportunities to lead their evidence are again trying to fill up the lacuna left in their case to prove the Will Ex.P1 under the garb of the fact that the filing of suit titled as Shri Krishan Vs. Bhateri Devi in the court of Senior Sub Judge, Narnaul was not to their knowledge earlier. One thing is very clear from the facts of the case that onus to prove the Will from the very beginning was upon the plaintiff-respondents and he also knew about the fact that the Will has to be proved by examining at least one of the marginal witnesses. In any case, on examination of Kurda Ram PW9 on 29.11.2004, it was clear to the plaintiff-respondents that in order to succeed in the suit, it was necessary for him to prove the signatures of Krishan Sanghi, the other marginal witness of the Will Ex.P1 and in spite of the fact that after 29.11.2004, plaintiff- C.R. No. 962 of 2009 8 respondent examined Shamsher Singh Malik Handwriting Expert and thereafter led rebuttal evidence on the basis of the order of this Court in Civil Revision No.3240 of 2005 and was also allowed to lead additional evidence on 10.2.2006 without any objection from the petitioners, yet he failed to complete his evidence. Thus, in these circumstances, definitely, it can be concluded that in spite of the ample opportunity given, the petitioner had failed to complete his additional evidence. In Sachin’s case (supra), it has been held by this Court that no additional evidence can be permitted by reopening affirmative evidence after closing of evidence by defendant. Admittedly, in this case, evidence of the defendant in affirmative was closed on 18.5.2005 yet plaintiff-respondents was given two opportunities to lead evidence i.e., on 9.6.2005 by way of rebuttal evidence and on 10.2.2006 as additional evidence and yet he again moved application for leading additional evidence which has resulted into passing of the impugned order. Simply because the plaintiff-respondent has failed to prove his case, he cannot be permitted to have another opportunity to lead evidence. No doubt, the High Court in exercise of its power under Article 227 of the Constitution of India will not interfere unless great prejudice is shown, but in the present case, the petitioners are likely to suffer a great prejudice if this court fails to exercise its jurisdiction under Article 227 of the Constitution of India as manifest injustice shall be caused to the petitioners. It is well settled that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step to exercise its supervisory jurisdiction. As narrated above, the plaintiff-respondents has got no such right of leading additional evidence at his own whims and fancy and allowing the plaintiff- respondent to lead further additional evidence to prove his case will be C.R. No. 962 of 2009 9 allowing him to fill up the lacuna left in his case. The judgments cited by the learned counsel for the petitioner in Pawan Kumar, Chhattar Singh and Basant Raj's cases(supra) are of no help as in all these cases, the Court has allowed additional evidence by recording that there were good and sufficient reasons for allowing the additional evidence and also by recording a finding that it was just and necessary to lead additional evidence for complete adjudication of the matter. In the present case, may be the evidence which is allowed to be led vide impugned order may be relevant but the same cannot be allowed only on this account because of the reason that the court cannot be a party by helping the party to prove its case by allowing him to fill up the lacuna in his case under the garb of additional evidence. For the reasons recorded above, the present revision petition is allowed and the impugned order is set aside and the trial Court is directed to proceed with the case in accordance with law. March 10, 2009 (RAKESH KUMAR GARG) nk JUDGE