CR No. 3432 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3432 of 2007 (O&M) Date of decision: 8.5.2009 Dalbir Singh and another .. Petitioners v. Smt. Bachan Kaur and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Sudeep Mahajan, Advocate for the petitioners. Mr. Kuldip Sanwal and Mr. Ramesh Kumar, Advocates for the respondents. Rajesh Bindal J. Aggrieved against the order passed by the learned court below dismissing the application filed by the petitioners under Order 41 Rule 27 CPC for leading additional evidence at first appellate stage, the petitioners-appellants are before this Court. Briefly, the facts are that respondent No. 1 filed a suit against the petitioners as well as respondent No. 2 for possession of the suit land on the ground that Gurcharan Singh, her father, died on 8.9.1993 leaving behind two daughters, namely, respondent No. 1 and Rattan Kaur and the property left by Gurcharan Singh was inherited by them. As the opposite party was in possession of the suit property without any right, title or interest therein, suit for possession was filed. The same was decreed by the trial court vide judgment and decree dated 30.10.2001, even though the plea of the petitioners was that much prior to his death on 8.9.1993 by way of registered will dated 26.12.1986, Gurcharan Singh had bequeathed his property in favour of the petitioners, who are their nephews. In an earlier litigation between the parties, the validity of the will was under challenge, where the same was upheld. Though during the course of evidence certified copy of the earlier judgment and decree was placed on record, but copy of the will could not be produced and it is this registered will which was sought to be produced in additional evidence before the first appellate court. The learned court below having rejected the application filed by the petitioners, the order is impugned in the present petition. CR No. 3432 of 2007 [2] Learned counsel for the petitioners submitted that though all the documents were handed over to the counsel at the appropriate time, however, as the counsel, who was representing the petitioners before the trial court, was suffering from cancer and ultimately expired, he could not take care of the interest of the petitioners properly, as the evidence, which was required to be led, was not led even though copy of the earlier judgment and decree upholding the will dated 26.12.1986 (Ex. DW3/1) was produced on record. The copy of will, though handed over to him, was not produced, which prejudiced the interest of the petitioners. He further submitted that the appellate court also in the interest of justice and to do complete justice between the parties could very well allow leading of additional evidence, once the genuineness thereof is not in dispute. Reliance was placed upon North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by Lrs. 2008(3) Civil Court Cases 226 and Lachhman Singh (deceased) through Legal Representatives and others v. Hazara Singh (deceased) through Legal Representatives and others, (2008) 5 SCC 444. On the other hand, learned counsel for the respondents submitted that from the very beginning, the case of the petitioners was based on the alleged will and upholding thereof in the earlier litigation between the parties, but still for the reasons best known to them, the will was not produced on record as only the earlier judgment and decree were exhibited. It was a case of total lack of due diligence. The additional evidence, as is sought to be led, was well within the knowledge of the petitioners and now the effort is to full in the lacuna. After hearing learned counsel for the parties, in my opinion, it is a fit case where the learned court below should have allowed the petitioners to prove the will by leading additional evidence. Admittedly, in earlier litigation between the parties, will dated 26.12.1986 has been upheld. Even the appeal filed by respondent No. 1 against that judgment and decree was dismissed by the first appellate court on 13.3.2001. No doubt, there is lapse on the part of the petitioners or their counsel to produce the will on record in the present proceedings, even though only the judgment was produced, but the same is sought to be explained with the reason that the counsel, who was representing the petitioners, was not keeping good health at the fag end of his life and on that account, complete evidence could not be produced, though the same was handed over to him. Still the fact remains that the will, which is sought to be produced, is a registered document. The validity of the same has already been upheld by the court in a separate suit between the parties. In case, the same is not permitted to be produced on record in the present proceedings on account of some lapse, there is chance of CR No. 3432 of 2007 [3] contradictory finding in the present proceedings which would not be in the interest of justice. Once the parties had already litigated on an issue and the judgment therein had attained finality, the same should be respected. There is no chance of any fabrication of evidence to be led by the parties as additional evidence. Accordingly, the impugned order passed by the learned court below is set aside. The petitioners are permitted to prove the will dated 26.12.1986 by leading additional evidence, subject to payment of Rs. 5,000/- as costs. The revision petition is disposed of in the manner indicated above. (Rajesh Bindal) Judge 8.5.2009 mk