C.R. No. 6977 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 6977 of 2010 Date of Decision: 15.11.2011 Rajesh Kumar ....Petitioner. Versus Mangat Rai and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. S.K. Arora, Advocate for the petitioner. Mr. Vikram Bajaj, Advocate for respondent No.1. Mr. K.B. Raheja, Advocate for respondents No.2 to 7. AJAY KUMAR MITTAL, J. 1. In this revision petition filed under Article 227 of the Constitution of India, petitioner-defendant No.7 has prayed for setting aside the order dated 29.9.2010 (Annexure P-1) vide which the application filed by him for leading additional evidence was dismissed by the trial court. 2. The facts necessary for adjudication as narrated in the present petition are that one Jagan Nath Madhar, Advocate, Ferozepur was the owner in possession of a residential house bearing No. ES- 31/8, outside Delhi Gate, Ferozepur City. He died on 28.2.1987 leaving behind his widow Satya Wati and a son Kamal Kant Madhar as his only legal heirs. Said Jagan Nath executed a Will dated 4.1.1987 in favour of his son Kamal Kant Madhar who after the death of Jagan Nath C.R. No. 6977 of 2010 -2- became exclusive owner in possession of the house in dispute. Kamal Kant Madhar expired on 26.6.1995 leaving behind his mother Satya Wati and respondents No.2 to 6 as his legal heirs. On the basis of natural succession, Satya Wati became the owner of 1/6th share while respondents No.2 to 6 inherited 5/6th share. After the death of Kamal Kant, the relations between respondents No.2 to 6 and Satya Wati became strained and she joined hands with the plaintiff-respondent No.1, who is the real brother of Satya Wati. As Satya Wati wanted to sell the entire house, respondent No.2 to 6 filed a suit for declaration stating therein that they were owners in possession of 5/6th share on the basis of Will dated 4.1.1987 executed by Jagan Nath Madhar in favour of Kamal Kant Madhar and further on the basis of natural inheritance from Kamal Kant Madhar and for permanent injunction restraining Satya Wati from alienating beyond 1/6th share in the house. Along with the suit, respondents No.2 to 6 also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction restraining Satya Wati from alienating more than 1/6th share in the house. The trial court vide order dated 8.8.1996 allowed the said application and restrained Satya Wati from alienating more than 1/6th share in the house. Feeling aggrieved, Satya Wati filed an appeal against the order dated 8.8.1996 and the said appeal was dismissed by the appellate court vide order dated 5.5.1997. The suit was contested by Satya Wati by filing a written statement. During the pendency of the suit, Satya Wati died on 12.2.1998. On the demise of Satya Wati, her estate devolved upon respondents No.2 to 6 under the provisions of Hindu Succession Act and since she was the only defendant, C.R. No. 6977 of 2010 -3- respondents No.2 to 6 withdrew the suit on 27.2.1998. Subsequently, respondent No.2 transferred her 1/5th share in the house in question by sale in favour of respondent No.7 through a registered sale deed dated 11..5.1998. Respondent No.2 filed an application under the provisions of Hindu Minority and Guardianship Act seeking permission to sell 4/5th share of respondents No.3 to 6 who were minors. The said application was allowed by the Guardian Judge, Ferozepur vide order dated 27.4.1999 and respondent No.2 with the permission of the court, transferred 4/5th share of the minors in the house in question in favour of the petitioner through a sale deed dated 3.6.1999 which was registered on 14.6.1999. On the basis of the aforesaid two sale deeds, the petitioner along with respondent No.7 had become the owners in possession of the house in dispute. 3. Plaintiff-Respondent No.1 filed a suit for declaration against the petitioner and respondents No.2 to 7 alleging therein that Jagan Nath Madhar executed a Will dated 23.11.1986 in favour of his wife Satya Wati and after his death, Satya Wati became the owner of the house in question on the basis of said Will. It was further alleged that Satya Wati, who is his real sister, executed a Will dated 4.9.1996 in his favour. After the death of Satya Wati on 12.2.1998, he became the owner in possession of the house in question. The said suit was contested by respondent No.2 to 7 by filing written statements controverting the averments made in the plaint. 4. The petitioner and respondent No.7 also filed a suit for declaration against respondents No.1 to 6 to the effect that they were owners in possession of the house in question to the extent of 1/5th and C.R. No. 6977 of 2010 -4- 4/5th share, respectively. They sought consequential relief of permanent injunction restraining respondent No.1 from alienating any part of the house and from interfering in their peaceful possession over the house in dispute. The said suit was contested by plaintiff-respondent No.1 by filing written statement. The execution of Will dated 4.1.1987 by Jagan Nath Madhar was denied. Both the suits were consolidated. 5. During the course of cross-examination of Mangat Rai, it came on record that Satya Wati never appended her signature on any document after her fall in the year 1984. To prove the fact that Satya Wati used to sign documents even after the year 1984, the petitioner along with respondent No.7 moved an application for leading additional evidence by placing certain documents on record, i.e. copy of appeal filed by Satya Wati against the order dated 8.8.1996 passed by the trial court, her power of attorney in favour of Sh. S.K. Talwar, Advocate, copy of the written statement dated 1.8.1996 filed by Satya Wati and her power of attorney in favour of Sh. S.K. Talwar, Advocate (since deceased) and Sant Singh, Advocate. The said application was contested by respondent No.1 by filing reply. The trial court vide order dated 29.9.2010 dismissed the application for leading additional evidence. Hence, the present revision petition. 6. I have heard learned counsel for the parties and perused the record with their assistance. 7. Learned counsel for the petitioner referred to the application for additional evidence and submitted that the documents required to be placed on record, i.e. the appeal filed by Smt. Satya Wati and the power of attorney; and copy of the written statement dated C.R. No. 6977 of 2010 -5- 1.8.1996 in case titled as “Ravinder Madhar v. Satyawati” and her power of attorney in favour of S.K. Talwar, Advocate since deceased and Sh.Sant Singh, Advocate are necessary documents. Learned counsel argued that Mangat Rai plaintiff while appearing as PW8 had specifically and categorically stated that Satya Madhar never appended her signatures on any document after her fall in the year 1984. He urged that the said fact was not correct as the documents referred to in the application for leading additional evidence clearly disapproved the aforesaid statement as Satya Madhar alias Satya Wati had appended her signatures on Vakalatnama and the plaint/appeal filed even after 1984. It was contended that the said documents were not within the knowledge of the defendant-petitioner and could not be produced with due diligence and, therefore, they were required to be produced by way of additional evidence for the just decision of the case. 8. Controverting the aforesaid submissions, learned counsel for respondent No.1 vehemently submitted that according to law, the evidence which was neither in the knowledge nor in existence could only be produced and as per the averments of the petitioner, the evidence which is now sought to be produced could not be said to be not within his knowledge or not in existence as no such averment has been made in the application. He further stated that the cross- examination of PW8-Mangat Rai was done in the year 2006 whereas the application was filed in the year 2010. Lastly, it was submitted that the evidence of the petitioner was closed after availing 45 opportunities and in such a situation, the application was just to delay the decision of the suit and was with an ulterior motive to harass the plaintiff- C.R. No. 6977 of 2010 -6- respondent No.1. Support was also sought from the judgments of this Court in Satnam Singh v. Devinder Kaur, 2006(4) RCR (Civil) 639 and Inder Singh v. Smt. Sandokhi Devi, 2006(4) RCR (Civil) 729. 9. After giving my thoughtful considerations to respective submissions of learned counsel for the parties, I find that the revision petition deserves to be allowed. 10. Rule 17A in Order 18 of the Code was inserted by Code of Civil Procedure (Amendment) Act of 1976 to permit production of additional evidence at a later stage which was not within the knowledge of the party producing evidence or could not be produced inspite of exercising due diligence. This provision was omitted by Code of Civil Procedure (Amendment) Act, 1999 effective from 1.7.2002 as it was felt that unnecessary applications were being filed primarily to delay the conclusion of the trial. However, this does not take away inherent power of the Court to do substantial justice between the parties and allow any material evidence to be led by them unless it is actuated with malafides or is due to gross negligence. 11. Ordinarily, the Court may not be required to evaluate the additional evidence at the stage of deciding the application but at the same time, a duty is cast on the Court to examine prima facie the relevancy of the material sought to be produced so as to conclude that the application filed is bonafide and not to abuse the procedural law to harass the opposite side. It is not every and all applications, howsoever frivolous it may be, are to be allowed. The Court is to ensure that the procedural law is not being misused to delay the decision of the suit and that at the same time substantial justice is done to the parties. C.R. No. 6977 of 2010 -7- 12. In the present case, the documents which are sought to be produced by way of additional evidence are the certified copies of the appeal filed by Satya Wati and the vakalatnama and also the written statement dated 1.8.1996 filed in the case 'Ravinder Madhar Vs. Satyawati and power of attorney. The photo copies of the said document have been produced in the court which prima facie show that they are signed by Satya Wati. Thus, the application for leading additional evidence cannot be said to be filed with malafide intention. In the given facts and circumstances, it is considered appropriate that an opportunity is granted to the defendant-petitioner to lead additional evidence to prove the aforesaid documents. However, the respondents can be compensated by way of costs. 13. Referring to the judgments relied upon by the learned counsel for the petitioner, the same have no applicability to the facts of the present case as the same are on individual fact situation involved therein. 14. In view of the above, the present revision petition is allowed and the order dated 29.9.2010 is set aside. The trial court shall grant one opportunity to the petitioner to lead additional evidence to prove the aforesaid documents subject to payment of Rs.5000/- as costs to be paid to the plaintiff. However, the trial court is directed to conclude the trial within six months from the date of receipt of a certified copy of this order. It is made clear that in case the petitioner fails to pay the cost, the revision petition shall be deemed to have been dismissed. November 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE