Punjab-Haryana High Court
Jangsher Singh & Anr vs Narender Singh on 12 March, 2014
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.974 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.974 of 2011
Date of Decision:-12.3.2014
Jangsher Singh & Anr. ......Petitioners
Versus
Narender Singh
.....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Ravinder Malik, Advocate for the petitioners.
Mr.Rakesh Nehra, Advocate for the respondent.
MEHINDER SINGH SULLAR, J. (Oral)
The matrix of the facts and material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, petitioners-plaintiffs Jangsher Singh son of Hari Singh and his wife Murti Devi (for brevity "the plaintiffs"), have instituted the civil suit (Annexure P1), against respondent- defendant Narender Singh son of Balbir Singh (for short "the defendant") for a decree of declaration to the effect that the adoption deed dated 31.12.1993 is illegal, null, void and not binding on their rights in any manner. The defendant contested their claim, filed the written statement, stoutly denied all the allegations contained in the plaint and prayed for dismissal of the suit. Having completed all the codal formalities, the trial Court dismissed the suit of the plaintiffs, by means of judgment & decree dated 18.8.2009.
2. Aggrieved thereby, the petitioners-plaintiffs have filed the appeal (Annexure P2). They have also moved a composite application (Annexure P4) for amendment of plaint under Order 6 Rule 17 and for Arvind Kumar Sharma 2014.03.19 12:21 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.974 of 2011 2 leading additional evidence under Order 41 Rule 27 read with Section 151 CPC. The defendant refuted their prayer, filed the reply (Annexure P5), strongly denied all the allegations contained in the application and prayed for its dismissal.
3. The appellate Court dismissed the pointed composite application of the plaintiffs, by virtue of impugned order dated 11.12.2010 (Annexure P6).
4. The petitioners-plaintiffs did not feel satisfied and preferred the present petition, to challenge the impugned order (Annexure P6) of appellate Court, invoking the superintendence jurisdiction of this Court under Article 227 of the Constitution of India.
5. During the course of preliminary hearing, the counsel for the plaintiffs has given up his claim for amendment of the plaint & only stressed the prayer for leading additional evidence and a Coordinate Bench of this Court (Jaswant Singh, J.) passed the following order on 6.4.2011:-
"The plaintiffs/appellants have assailed the order dated 11.12.2010 (P6) whereby their application for leading additional evidence has been dismissed.
Learned counsel for the plaintiffs/appellants submits that plaintiffs/petitioners had filed a suit for declaration challenging the adoption of the defendant Narender Singh on the ground that the adoption of defendant Narender Singh by them was null and void since the required customary rituals were not performed. The suit was dismissed. An appeal was filed and during the pendency of the appeal, an application for amendment and leading of additional evidence by seeking to place on record the Date of Birth certificate of their adopted son Narender Singh (defendant) to indicate that he was admittedly above 15 years of age and thus, legally not liable to be adopted under the Hindu Adoption and Maintenance Act, 1956.
Learned counsel at the time of arguments gave up his claim for amending the suit while stressing the prayer for leading additional evidence by way of placing the birth certificate of defendant-Narender Singh on record to prove that he is above 15 years of age, which is absolutely necessary for a just and effective adjudication of the issue.Arvind Kumar Sharma 2014.03.19 12:21 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.974 of 2011 3
In support, reliance has been placed on Kasturi Lal v. Smt.Kaushalya Devi and others (RSA No.2719 of 2007) decided on 17.5.2010.
Notice of motion for 7.7.2011.
Passing of the final order by the appellate Court is stayed."
6. After hearing the learned counsel for the parties, going through the record with their valuable assistance and considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this respect.
7. Above being the position on record, now the short & significant question, though important, that arises for determination in this petition is, as to whether the production of birth certificate of the defendant is essential to decide the real controversy, validity & genuineness or otherwise of the adoption deed and to do substantial justice between the parties or not ?
8. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the affirmative.
9. As is evident from the record that the plaintiffs have filed the civil suit (Annexure P1) for a decree of declaration to challenge the indicated adoption deed, inter-alia pleading that the adoption of the defendant by them was null and void. The learned counsel for petitioners has contended with some amount of vehemence that since the defendant was major at the relevant time, so, the pointed adoption was illegal, in view of the provisions of The Hindu Adoption & Maintenance Act, 1956. As to whether the defendant was legally of adoptable age, adoption is valid or otherwise, inter-alia, would be a moot point to be decided by the appellate Court. In that eventuality, to my mind, the production of evidence of his date of birth/birth certificate is very much essential to effectively adjudicate upon the controversy and to advance the substantial justice between the Arvind Kumar Sharma 2014.03.19 12:21 I attest to the accuracy and integrity of this document Chandigarh Civil Revision No.974 of 2011 4 parties. Moreover, no prejudice was going to be caused to the defendant, particularly when he can well be compensated with adequate costs for late production of the indicated evidence. Thus, the appellate Court appears to have slipped into a deep legal error to decline the prayer of plaintiffs for leading additional evidence and the impugned order (Annexure P6) cannot legally be maintained to that extent, in the obtaining circumstances of the case.
10. In the light of aforesaid reasons, the instant petition is partly accepted. Consequently, the impugned order of appellate Court, as it relates to declining the prayer of petitioners-plaintiffs to adduce the aforementioned additional evidence, is hereby set aside. Therefore, the appellate Court is directed to give one effective opportunity to them (plaintiffs) to produce the indicated additional evidence and one opportunity to defendant to rebut the same. However, this would be subject to payment of ` 5000/- as costs, to be paid by the plaintiffs to the defendant personally.
Sd/-
(Mehinder Singh Sullar) Judge 12.3.2014 AS Arvind Kumar Sharma 2014.03.19 12:21 I attest to the accuracy and integrity of this document Chandigarh