Punjab-Haryana High Court
Sham Lal vs Ramesh Kumar And Another on 23 May, 2012
Author: K.C.Puri
Bench: K.C.Puri
Civil Revision No.3122 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.3122 of 2012
Date of decision 23.05. 2012.
Sham Lal
...... Petitioner
versus
Ramesh Kumar and another
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Shri A.K.Kansal, Advocate for the petitioner.
K.C.PURI, J.
Challenge in this revision petition is the order dated 10.5.2012 passed by Shri Ramender Jain, District Judge, Jind vide which the application moved by the plaintiff-respondent No.1 Ramesh Kumar to produce his Higher Secondary Examination Certificate to prove his date of birth by way of additional evidence was allowed.
2. Plaintiff-respondent No.1 has pleaded that defendant/appellant now petitioner has taken up a plea in the memorandum of appeal that respondent/plaintiff has failed to prove that any of them had born prior to Civil Revision No.3122 of 2012 2 17-6-1956 i.e. enforcement of Hindu Succession Act, 1956. Plaintiff/respondent No. I wanted to produce Higher Secondary Certificate to prove the fact that he was born prior to enforcement of Hindu Succession Act on 17-5-1956. The said application was resisted by the appellant before the Appellate Court. However, the learned First Appellant court allowed the application subject to payment of Rs.3000/- as cost.
3. The learned First Appellant court has reached to the conclusion that the document sought to be produced is essential for the just decision of the case, as it will remove the confusion in the age of the plaintiff.
4. The first contention raised by the counsel for the petitioner is that application under Order 41 Rule 27 CPC as well as the appeal should have been decided by the same order. The Hon'ble Apex Court in authority Eastern Equipment & Sales Limited vs. Ing. Yash Kumar Khanna (2008) 12 Supreme Court Cases 739 has set aside the order of dismissing the application under Order 41 Rule 27 CPC and directed the same to be decided along with the appeal. So, in these circumstances, the trial Court should have decided the application along with the appeal.
5. I have considered the said submission and have gone through the authority Eastern Equipment & Sales Limited's case (supra). The facts of that case are distinguishable as in that case, application under Order 41 Rule 27 CPC was dismissed. The Hon'ble Apex Court is of the view that the application under Order 41 Rule 27 CPC and main appeal should be heard together. The real intention seems to be in respect of that ruling is Civil Revision No.3122 of 2012 3 that some time the application under Order 41 Rule 27 CPC is decided without applying mind to the facts of the case. So, dismissal of application under Order 41 Rule 27 CPC, under those circumstances was held not good. However, in the facts of the present case it is revealed that the application under Order 41 Rule 27 CPC and the main appeal were heard together and the First Appellate Court reached to the conclusion that application under Order 41 Rule 27 CPC deserves acceptance as the evidence sought to be produced is essential for the just decision of the case, so, under that circumstances, the application under Order 41 Rule 27 CPC has been allowed. The petitioner is not in any way prejudiced by deciding the application under Order 41 Rule 27 CPC separately but rather will get a chance of rebuttal to the additional evidence. So, the petitioner cannot have the benefit of above said authority.
6. Authority Hakam Singh vs. State of Haryana and others (2008) 12 Supreme Court Cases 762 is remotely connected to the facts of the present case as in that case the appeal was decided without deciding the application under Order 41 Rule 27 CPC.
7. Authority Haryana State Industrial Development Corporation vs. M/s Cork Manufacturing Co. AIR 2008 Supreme Court 56 does not advance the case of the petitioner. In that case, Hon'ble Mr.Justice Tarun Chatterjee, Judge of Hon'ble Supreme Court reached to the conclusion that legal notice was not required by the Appellate Court to pronounce a proper judgment. However, Hon'ble P.K.Balasubramanyan, the Hon'ble Bench partner of Justice Tarun Chatterjee reached to the conclusion that the said legal notice is essential for just decision of the case Civil Revision No.3122 of 2012 4 and ultimately in view of the difference of opinion, the case was put up before Hon'ble the Chief Justice of India for placing the matter before another appropriate larger Bench. So, this authority does not help the petitioner.
8. Authority State of Gujarat & Anr vs. Mahendrakumar Parshottambhai Desai (D) by L.Rs. AIR 2006 Supreme Court 1864 rather goes against the case of the petitioner. In that case notification regarding acquisition of land was not produced before the Court below. However, the Hon'ble Apex Court has considered that notification and the appeal of State of Gujarat was partly accepted to the extent land covered by said notification.
9. The last contention of learned counsel for the petitioner is that the only certified copy of the certificate of plaintiff has been produced. So, in view of authority Sri Lakhi Baruah and others vs. Sri Padma Kanta Kalita and others AIR 1996 Supreme Court 1253, the presumption for genuineness of document under Section 90 of the Evidence Act is not available.
10. I have considered the said submission but do not find force in that submission.
11. The authority Sri Lakhi Baruah and others' case (supra) relates to production of a document more than 30 years old. It is held in that case, that presumption of genuineness of 30 years old document can only be drawn if the foundation is laid for admission of secondary evidence under Section 63 of the Evidence Act. The plaintiff might be in possession Civil Revision No.3122 of 2012 5 of the original certificate and he can exhibit the certified copy after showing the original before the First Appellate Court. In case the plaintiff is not in possession of original of his certificate in that case he may seek the permission to prove the same by way of secondary evidence.
12. So, in these circumstances, I see no illegality in the impugned order passed by the trial Court allowing the application for additional evidence.
13. Consequently, the revision is without any merit and the same stands dismissed.
14. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI ) JUDGE May 23 , 2012 sv