Punjab-Haryana High Court
Smt. Labh Kaur vs Ram Asra And Anr. on 23 September, 1999
Equivalent citations: (2000)125PLR311
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Challenge in this revision petition is to the order dated 19.7.1999 passed by learned Civil Judge, Junior Division, Panchkula.
2. Vide impugned order, the learned trial court has dismissed an application filed by the petitioner (plaintiff in the suit) under Order 18 Rule 17 of the Code of Civil Procedure for permission to lead additional evidence.
3. The plaintiff has filed a suit for possession as owner of the house and bara, subject matter of the suit, on the basis of a registered Will allegedly executed by Smt. Nikki Devi. During the pendency of the suit, the plaintiff had filed the above application, as she wished to prove on record her being the legitimate daughter of Smt. Nikki Devi. According to the applicant, the need arose because in the evidence adduced by the defendants, they made such averments that she is not the legitimate daughter of the deceased.
4. It is stated that in the written statement such a plea was taken by the defendants and no issue regarding legitimacy of the applicant was framed by the learned trial court. The entire suit revolve on the finding of the question whether the applicant-plaintiff has inherited the property on the basis of the Will, which otherwise is a legal and proper Will. No specific issue was framed and it may ultimately have no direct bearing on the matter in controversy but it is certainly a relevant fact which may ultimately weigh with the court in determining the real controversy and the relief to which the plaintiff would be finally entitled to. The application lacks details but that by itself would not be sufficient to reject the application. It is not possible for the court to conclude that the factum of the applicant being the legitimate child will be of no consequence, as an attendant circumstance to the execution of the Will. The plaintiff claims herself to be the daughter of deceased Smt. Nikki Devi and in all probability she should be afforded opportunity to lead evidence. This court in the case titled as Banwari v. Nagina, (1998-1) 118 P.L.R. 511 held as under:-
"6. The concept of additional evidence has been given wider dimension in the recent judgment of Hon'ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi, (1997-3) 117 P.L.R. 880 (S.C) where the court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41 CPC if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex parte decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer, but the same was allowed by Hon'ble Apex Court.
7. The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the court under Sub-rule 4 of Rule 2 of the Order 18 cannot be curtailed by reading the provisions of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to further cause of justice rather than frustrate the same. Non production of documents after exercise of due diligence appears to be very foundation for filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (supra)."
5. Certainly there is some extent of negligence attributable to the applicant but that itself cannot be a sufficient ground for declining the relief claimed by the applicant. The defendants are stated to be in forcible possession and the interest of justice would require that the plaintiff should be afforded full opportunity to prove her case and settle all controversies finally which arise for determination in the present case.
6. For the reasons aforestated, I would set aside the impugned order dated 19.7.1999 passed by the learned trial Court and permit the plaintiff (petitioner herein) to lead additional evidence restricted to the above fact that the documents sought to be produced by way of additional evidence are such, the authenticity of which normally would not be doubted. They are ration card and voter list.
7. Consequently, the revision petition is allowed. The impugned order dated 19.7.1999 is set aside. The petitioner herein shall be given one opportunity by the learned trial court to lead additional evidence subject to payment of costs of Rs. 1000/- being conditional.