Punjab-Haryana High Court
Hans Raj vs Surinder Kaur And Others on 5 March, 2010
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Revision No. 300 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 300 of 2010 (O&M)
Date of decision: 5.3.2010
Hans Raj
.. Petitioner
v.
Surinder Kaur and others
..Respondents.
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. R.S. Mamli, Advocate for the peitioner.
Mr. A. S. Virk, Advocate for respondent No. 1.
...
Rajesh Bindal J.
Challenge in the present petition is to the order dated 15.12.2009, passed by the learned court below, whereby the application filed by the petitioner- defendant for permission to lead additional evidence was dismissed.
Briefly, the facts are that respondent No. 1-plaintiff filed a suit for declaration claiming that she was owner in possession of the suit land as per sale deed dated 5.12.1967 along with one room constructed thereon. Further challenge was made to the order dated 24.12.2001, passed by the Secretary, Municipal Council, Thanesar. After the parties had led their evidence, the petitioner- defendant filed application seeking permission to lead additional evidence in support of the stand taken by him in the written statement filed, which could not be substantiated in the evidence already led. The learned court below dismissed the application holding that the petitioner-defendant availed of as much as 11 opportunities for concluding his evidence. The documents, which are sought to be produced being in existence prior to the filing of the suit and there is presumption of the same being in the knowledge of the petitioner-defendant, no case for grant of permission to lead additional evidence was made out, as the petitioner had failed to show due diligence on his part for not producing the documents, when his evidence was being led. It is against this order that the petitioner-defendant is before this Court.
Learned counsel for the petitioner submitted that there may be some lapse on the part of the petitioner or his counsel in not leading the evidence at the Civil Revision No. 300 of 2010 [2] appropriate stage, which is now sought to be led. In fact, specific plea has been raised by the petitioner in the written statement filed to the effect that in the earlier suit filed by one Gian Singh against the petitioner regarding the same property, the matter was compromised before this Court. In those proceedings, respondent No. 1-plaintiff, who is related to Gian Singh, had filed her affidavit admitting that the land belonged to Gian Singh, which is relevant for the purpose of decision of the lis between the parties. Further his plea regarding the petitioner-defendant being in possession of the property was found by Sub Divisional Officer (Civil), Kurukshetra during inspection of the site, which is also part of the judicial proceedings in the earlier suit between Gian Singh and the petitioner as Ex. P4. Referring to these two documents, which are sought to be produced, it was submitted that both the documents being part of the judicial record, there is no possibility of the same being tampered with or creation subsequently. However, the production thereof will clinch the issue in favour of the petitioner. Even if there is some lapse on the part of the petitioner or his counsel, that should not come in the way of doing substantial justice, as the law of procedure is subservient to justice. On that account, the other party can very well be compensated with costs. Reliance was placed upon Surinder Kumar v. Prem Lata, 1997(3) PLR 291; Raju Sharma v. Pardeep Kumar, 1999(1) PLR 612; Mam Raj v. Sabiri Devi, 2000(1) PLR 517 and Labh Kaur v. Ram Asra, 2000(2) PLR 311.
On the other hand, learned counsel for respondent No. 1-plaintiff submitted that the suit in the present case was filed by respondent No. 1-plaintiff on 3.1.2002, which is now fixed for arguments on 8.3.2010. When the application was filed, it was listed for rebuttal evidence of the plaintiff and arguments. It is admitted case of the petitioner that the documents, which are sought to be produced, were within his knowledge, as even a reference thereto was made in the written statement filed, but still those were not produced in evidence, may be for the reason that counsel did not find them to be relevant. At this stage, the petitioner should not be permitted to produce the same in additional evidence, merely to fill in the lacuna in the evidence already led. Both these documents are not per se admissible in evidence and even if they are produced on record, the same will not lead the case of the petitioner any further, as both the documents were not even put to respondent No. 1-plaintiff when she appeared in the witness box. These are the documents, which were part of an earlier litigation in which respondent No. 1- plaintiff was not a party. In fact Order 18 Rule 17-A CPC was deleted only to avoid such situations and in the facts of the case, the petitioner had not been able to make out any case for permitting him to lead additional evidence. Reliance was Civil Revision No. 300 of 2010 [3] placed upon Satnam Singh v. Devinder Kaur, 2006(4) RCR (Civil) 639; Inder Singh v. Smt. Sandokhi Devi, 2006(4) RCR (Civil) 729 and Pawan Kumar v. Raj Kumar and others, 2007(1) RCR (Civil) 385.
Heard learned counsel for the parties and perused the paper book. From a perusal of the pleadings and after hearing the arguments of learned counsel for the parties, it is definite that in the present case, there is some lapse on the part of the petitioner or his counsel in not leading the entire evidence in support of the plea raised by him in the written statement. In paragraph 6 of the written statement filed by the petitioner, a plea was taken that in the affidavit dated 7.1.1989 filed by respondent No.1-plaintiff in the suit filed by Gian Singh, she admitted that the suit land was not owned by her but was owned by Gian Singh. It is further pleaded in paragraph 5 of the preliminary objection in the written statement filed by the petitioner that he was in possession of the suit land ever since the same was delivered to him in execution of the sale deed dated 1.5.1980. The same was even inspected by Bahadur Singh, the then Sub Divisional Magistrate, Thanesar and detailed report dated 7.4.1988 to that effect was attached. Order dated 10.11.1998 passed in the earlier litigation between Gian Singh and Hans Raj was referred to, which was disposed of in terms of compromise deed dated 6.11.1998, wherein the suit filed by Gian Singh claiming himself to be the owner in possession of the suit land was dismissed. The fact remains that the two documents, which are now sought to be produced by the petitioner in additional evidence, are in fact part of the judicial record in the earlier litigation between Gian Singh and the petitioner, meaning thereby there is no question of tampering thereof by any of the parties.
As far as value and effect of those documents is concerned, this court is not opining thereon, as the same shall be considered by the learned court below after hearing arguments of both the parties, but I find that the documents are relevant for the purpose of decision of the lis between the parties. As to whether they are per se admissible or not will also be considered by the court below. Merely because there is some delay or some lapse on the part of the petitioner or his counsel in not producing the documents at the initial stage, I do not find that to be sufficient reason for dis-allowing the application for additional evidence, even after the deletion of Order 18 Rule 17-A CPC.
Hon'ble the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005(3) RCR (Civil) 530 held that in spite of deletion of provisions of Order 18 Rule 17-A of the CPC by amending Act of 2002, the right to produce evidence at later stage by way of additional evidence is Civil Revision No. 300 of 2010 [4] not taken away as the court has always inherent power to exercise the jurisdiction for advancement of justice under Section 151 of the CPC.
Considering the fact that proceedings in the suit have been delayed on account of leading of additional evidence by the petitioner, respondent No. 1- plaintiff deserves to be adequately compensated. Accordingly, while allowing the petitioner-defendant to lead additional evidence in the form of affidavit of respondent No. 1-plaintiff and the report of Sub Divisional Magistrate (Civil) forming part of the earlier litigation between Gian Singh and the petitioner, the petitioner is burdened with costs of Rs. 10,000/- payable to respondent No. 1- plaintiff. The petition is accepted subject to payment thereof on the next date of hearing. The impugned order passed by the learned court below is set aside. To avoid any further delay in the disposal of the suit, which is already pending since 2002, the trial court is directed to adjourn the hearing of the suit to 7.4.2010, on which date the petitioner will produce the additional evidence sought to be produced by him. No further opportunity shall be granted for the purpose.
(Rajesh Bindal) Judge 5.3.2010 mk