The main legal principle established in the judgment is that in cases where the original evidence is unavailable and the opposing party has admitted certain facts, the court may allow the plaintiff to lead additional evidence in the interest of justice.

Sandeep Sharma, J.

Being aggrieved and dis-satisfied with the order dated 12.12.2017, passed by learned Senior Civil Judge, Chamba, District Chamba, whereby the Court below dismissed the application under Section 151 of the Code of Civil Procedure (for short ‘CPC’) filed on behalf of applicant-plaintiff for leading additional evidence, petitioner (hereinafter referred to as the ‘plaintiff’) has approached this Court in the instant proceedings.

2. Necessary facts, as emerged from the material available on record, are that the plaintiff filed a suit against the respondents-defendants (hereinafter referred to as the ‘defendants’) for declaration to the effect that Uttmo Devi (deceased) mother of the plaintiff and defendant No.1, namely; Gazinder Singh, who was owner in possession of the land detailed in the plaint, bequeathed her entire property in favour of the plaintiff vide registered Will dated 23.08.1993 and mutation No.992 dated 15.06.2005, whereby defendant got suit land to the extent of half share mutated in his favour in connivance with the revenue officials, is wrong, illegal, void and inoperative. Plaintiff also prayed that mutation No.992, dated 15.06.2005 and subsequent entries in favour of the defendants may be declared as null and void. Apart from above, plaintiff also sought decree for permanent prohibitory injunction restraining the defendants from interfering in possession of the plaintiffs in any manner and from taking forcible possession of the suit land.

3. Defendant No.1, while contesting the claim of the plaintiff, as set up in the plaint, though admitted the factum with regard to execution of Will dated 23.08.1993 by late Uttmo Devi in favour of the plaintiff, but, claimed that the Will set up by the plaintiff was subsequently cancelled by late Uttmo Devi by executing another Will dated 05.10.2003, whereby she bequeathed her entire property in favour of both; plaintiff and defendant No.1; in equal shares.

4. During the pendency of trial, plaintiff filed an application under Sections 45 and 73 of the Indian Evidence Act, 1872, praying therein to send thumb impression of late Utrtmo Devi on Will dated 23.08.1993, to an expert for comparing the same with thumb impression put on Will dated 05.10.2003. Aforesaid application was rejected by the Court below, however, this Court vide order dated 21.3.2016 passed in CMPMO No.366 of 2015, set aside the order dated 15.09.2014, passed by the learned Court below and ordered that the registered Will dated 23.08.1993 be requisitioned from the office of Sub Registrar, Chamba and thereafter the same be sent to the Government Examiner of Questioned Documents to compare thumb impression of Uttmo Devi on Wills dated 23.08.1993 and 05.10.2003.

5. Pursuant to the aforesaid direction passed by this Court, both the Wills, as referred hereinabove, were sent to CFSL, Delhi, who vide communication dated 30.1.2017, submitted its report to the learned Court below. CFSL, Delhi, in the aforesaid opinion/report has reported that thumb impression contained on Will dated 23.08.1993, does not match with the subsequent Will dated 05.10.2003.

6. Pursuant to receipt of aforesaid report submitted by CFSL, Delhi, plaintiff moved an application under Section 151 CPC before the Court below seeking therein permission to lead additional evidence. Plaintiff averred in the application that the plaintiff earlier could not examine the witnesses to the Will in dispute and he also wants to examine the expert, who compared both the Wills to prove the report in accordance with law.

7. Learned Court below, while dismissing the aforesaid application filed by the plaintiff, held that in order to prove the due execution of Will alleged to have been executed by deceased Uttmo Devi in favour of the plaintiff, plaintiff was required to lead evidence in affirmative and as such, application at this stage, cannot be allowed as it would amount to de novo trial, which is not permissible under law. Learned Court belo