IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.328 of 1991 (O&M) Date of decision: 19th August, 2010 Bahal Kaur … Appellant Versus Gurlal Singh and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jasmail Singh Brar, Advocate for the appellant. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Civil Misc. No. 8208-C of 2010 CM is allowed and the substantial questions of law formulated by counsel for the appellant are taken on record. Regular Second Appeal No.328 of 1991 Appellant-Bahal Kaur had filed a suit for declaration to the effect that she is owner in possession to the extent of 1/3rd share in the agricultural land described in the head-note of the plaint, situated in the area of village Budhsinghwala, tehsil Moga. It was further prayed that in the alternative, the suit for possession of the 1/3rd share of land be decreed. One Santa Singh had three daughters, namely Jagir Kaur; Bahal Kaur and Gurdial Kaur. Jagir Kaur died issueless. Respondent- defendants No.3-9 are the sons of Gurdial Kaur, whereas Gurdial Kaur Regular Second Appeal No.328 of 1991 (O&M) herself has been impleaded as respondent No.2. In the suit, it was stated by Bahal Kaur that she was married with one Sadhu Singh about 40 years ago and had one son namely Lakhbir Singh aged about 28 years. Thus, there was no necessity for her to adopt Gurlal Singh defendant No.1 to the suit, as her son. It was pleaded that the consent-decree in civil suit No.47 dated 17th October, 1985 passed by the Court of Sh.B.C. Rajput, PCS, Additional Senior Sub Judge, Moga was a nullity, as she had never appeared in the Court and had not signed any compromise. Rather somebody had impersonated her in the Court of Additional Senior Sub Judge, Moga. It was further pleaded that from the conduct of defendants No.3 to 9, it can be safely inferred that this was their handicraft, as they had earlier forged the Will of Santa Singh, father of the plaintiff and defendant No.2. Gurlal Singh never appeared in the suit and was proceeded against ex-parte. Gurlal Singh has also not appeared in this Court. The stand taken by counsel for the appellant is that Gurlal Singh is a fictitious person and on his behalf the land is being cultivated by respondents-defendants No.3 to 9. The trial Court formulated the following issues: 1. Whether the plaintiff is owner in possession of 1/3rd share of the disputed land? OPP. 2. Whether the plaintiff is entitled to possession of 1/3rd of the disputed land as an alternative relief? OPP 3. Whether the plaintiff has no locus-standi to institute this suit? OPD 4. Whether this Court has no jurisdiction to entertain and try this suit? OPD 5. Whether this suit is not maintainable in the present form? OPD. 2 Regular Second Appeal No.328 of 1991 (O&M) 6. Relief. The suit was dismissed by the trial Court on the ground that compromise Ex.C1 in the earlier suit dated October 17, 1985 was not brought on the record and the plaintiff had made no effort to get her thumb impression compared on the compromise Ex.C1 and the vakalatnama submitted in the earlier suit. On dismissal of the suit, the appellant filed an appeal. In the appellate Court below, an application was submitted on 17th March, 1989 for taking photographs of the thumb impressions on the case file of earlier suit. That application was allowed. One K.C. Puri, who was a fingerprint expert, had taken those photographs and submitted a report. It is stated that the report was in favour of the plaintiff and it stated that the thumb impressions on the compromise and other documents, including vakalatnama and the statement of Bahal Kaur, were forged. Accordingly, an application was filed under Order 41 Rule 27 CPC and permission was sought to produce and prove the report dated 25th March, 1989 of K.C.Puri and Satwant Puri, documents expert, who had made comparison of the thumb impressions purported to be of the appellant (Bahal Kaur) in the civil suit No.61 of 1985 titled as ‘Gurlal Singh v. Bahal Kaur’ decided on 17th October, 1985 by the Court of Sh.B.C. Rajput, Additional Senior Sub Judge, Moga, with the specimen thumb impressions of the appellant. Counsel for the appellant has very forcefully stated that the land is situated in village Budhsinghwala and one Gurjant Singh Budhsinghwala of the village was a dreaded terrorist and in the years 1985-90, it was his writ that was prevailing in the area. To fortify this submission, it has been stated that abruptly three counsels, who were representing the appellant in the appellate Court below, made statements to withdraw from the appeal. Learned counsel has referred to the order 3 Regular Second Appeal No.328 of 1991 (O&M) dated 7th November, 1989 passed by the Court of Additional District Judge, Faridkot, which reads as under: “Present: Sh. Ranjit Singh Wahniwal, counsel for the appellant. This application has been moved by the counsel for the appellant for withdrawing from this case on behalf of the appellant. The application is signed by all the three counsel of the appellant, namely S/Sh.Ranjit Singh Wahniwal, Barjinder Pal Singh Brar and Jatinder Singh Wahniwal. It is mentioned that they no longer want to remain as counsel of the appellant and do not want to plead the case of the appellant and they have already informed in this regard by way of letter sent through registered post to the appellant. Keeping in view the application, the counsel for the appellant are allowed to withdraw.” It is stated that the counsel had filed an application to withdraw and in the application they had stated as under: “3) That for certain reasons the undersigned do not want to remain as counsel for the appellant and do not want to plead her case on behalf of appellant.” Learned counsel has submitted that after these persons had withdrawn, the appellant engaged another Senior Counsel, namely Mr.Gurnek Singh Brar, whose power of attorney is at page 83 of the record. It is stated that Mr.Brar on 7th December, 1989 filed an application that before the appeal is decided, the application under Order 41 Rule 27 CPC be decided. This application is at page 85 of miscellaneous record of the appellate Court below. On 6th January, 1990, the Additional District Judge, Faridkot passed the following order: “Present: Counsel for the applicant. Notice to the opposite side be given for 16th February, 1990, the date already fixed in the main case.” 4 Regular Second Appeal No.328 of 1991 (O&M) Counsel for the appellant has stated that all efforts were made by the appellant to prove the report of fingerprint expert in the additional evidence but in the applications filed, earlier three counsels had withdrawn and thereafter, Mr.Gurnek Singh Brar, who had given an application, suddenly abandoned the appeal and the application. After Mr.Gurnek Singh Brar left to vouchsafe the interest of the appellant, suddenly one B.M. Modi, who was not engaged as a counsel and whose power of attorney is not on the case file, caused appearance in the Court of Additional District Judge, Faridkot and made a statement to withdraw the application for additional evidence, by which the report of the fingerprint expert was sought to be proved. It is stated that on 23rd November, 1990, B.M. Modi made a statement that he will not press the application under Order 41 Rule 27 CPC. Learned counsel has stated that it is due to the threat exhorted by Gurjant Singh Budhsinghwala, a dreaded terrorist, that abruptly three counsels had withdrawn to pursue the appeal and in their applications they stated that for some reasons they wanted to withdraw. It is stated that thereafter, Mr.Gurnek Singh Brar, a senior counsel, was engaged, who filed an application that the application for additional evidence be decided but suddenly he also abandoned the application and the appeal. Thereafter, B.M. Modi, who was not engaged as a counsel and was not given any power of attorney, appeared in the Court and made a statement that the application for additional evidence be dismissed as withdrawn. For the above reasons, this Court is of the opinion that fair opportunity has not been granted to the appellant to pursue her appeal. Fair play and equity demand that the matter should be remanded back to 5 Regular Second Appeal No.328 of 1991 (O&M) the appellate Court below to decide the application under Order 41 Rule 27 CPC and adjudicate upon the appeal preferred by the appellant. Accordingly, the order dated 27th November, 1990 passed by the appellate Court below along with the order whereby application under Order 41 Rule 27 CPC was permitted to be withdrawn, is hereby set aside. The District Judge, Faridkot shall entrust the Civil Appeal No.301 of 24.12.1988 to any of the Additional District Judges in the District, who shall decide the appeal after affording an opportunity of hearing to all the concerned and shall also decided the application under Order 41 Rule 27 CPC. With the observations made above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE August 19, 2010 rps 6