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2011 Supreme(P&H) 191
PUNJAB & HARYANA HIGH COURT
Ram Chand Gupta, J.
Mohan Lal
Versus
Bhim Sain
Civil Revision No. 7421 of 2010,
Decided On : JANUARY 19, 2011
The court has inherent power under Section 151 of the Code of Civil Procedure to allow the application to adduce additional evidence if it is essential for the just decision of the matter in controversy, even after the deletion of the provision of Order XVIII Rule 17-A.
Headnote:
Additional Evidence - Disputed Passage - Code of Civil Procedure - Order XXI Rule 97, Section 151 - Salem Advocate Bar Association v. Union of India, Pawan Kumar v. Raj Kumar, Krishan Kumar Sardana v. Sita Ram Adlakha, State of Punjab v. Shamlal Murari - The court allowed the petitioner-defendant to produce additional evidence as the documents were essential for the proper adjudication of the controversy between the parties, and the delay caused by the petitioner-defendant was compensated by imposing a cost of Rs.5,000.
Fact of the Case:
The petitioner-defendant filed a revision petition under Article 227 of the Constitution of India to set aside the order dismissing the application for leading additional evidence. The dispute was regarding a passage situated in the North side of the petitioner-defendant's shop, and there were multiple litigations and appeals related to the property.
Finding of the Court:
The court found that the documents sought to be produced as additional evidence were essential for the proper adjudication of the controversy between the parties, and the delay caused by the petitioner-defendant was compensated by imposing a cost of Rs.5,000.
Issues: The main issue was whether the petitioner-defendant should be allowed to produce additional evidence, considering the delay caused by the petitioner-defendant in seeking to tender the documents in evidence.
Ratio Decidendi: The court held that the right to produce additional evidence at a later stage has not been taken away by the deletion of the provision of Order XVIII Rule 17-A of the Code of Civil Procedure, and the court has inherent power under Section 151 of the Code to allow the application to adduce additional evidence if it is essential for the just decision of the matter in controversy.
Final Decision: The revision petition was accepted, and the order dismissing the application for leading additional evidence was set aside. The petitioner-defendant was burdened with a cost of Rs.5,000, and the trial court was directed to grant one opportunity to the petitioner-defendant to lead additional evidence as mentioned in the application.
Ram Chand Gupta, J.
1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 18.10.2010, passed by learned trial Court, vide which application filed by present petitioner-defendant no.1 for leading additional evidence was ordered to be dismissed.
2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.
3. Brief facts relevant for the decision of present revision petition are that there is dispute between the parties to the suit with regard to a passage situated in North side of shop of petitioner-defendant no.l. The property of respondent no.2 and his mother Smt.Sewati Bai is situated in Northern and Eastern side of that disputed passage. Petitioner-defendant no.l had purchased this shop in question from Chunni Lal by way of registered sale deed No.557 dated 16.7.1976 while respondent no.2 and his mother had purchased the Northern Eastern side property from same Chunni Lal before the sale deed of petitioner. The shop of petitioner is two sides open having two doors in Northern side opening in the disputed passage and one door in western opening on the main road. There is a recital in the sale-deed of respondent no.2 and his mother that the disputed passage in question is a thoroughfare meant for egress and ingress of the vendor.
4. The present petitioner filed an execution petition before the Executing Court. In the meantime, Leela Dhar, respondent no.2 filed Civil Appeal No.68 of 1997 before the District Judge, Narnaul. The petitioner also filed cross-objections bearing No.80 of 1997. Honble District Judge, Narnaul, dismissed the appeal of proforma defendant no.2 and allowed the cross-objections of present petitioner vide judgment and decree dated 4.10.2000. Leela Dhar -respondent no.2 filed Regular Second Appeal bearing No.4044 of 2000 before this Court, which was dismissed on 8.11.2000. During pendency of this suit, local commissioner was also appointed, who had submitted its report.
5. Chiman Lal, father of defendant no.2 and plaintiff also filed a suit No.7 of 13.1.1998 against defendant no.l in the civil court at Mohindergarh claiming himself as co-sharer in disputed passage.
6. During pendency of civil suit, Chiman Lal died and the plaintiff and defendant no.2 were impleaded as his legal representatives in that suit before filing of the present suit. Meanwhile, defendant no.2 filed a civil suit No.433 of 1993 against Municipal Committee, Mohindergarh and impleaded the plaintiff and his father Chiman Lal as proforma defendants. In the execution petition No.28 of 2001, Mohan Lal filed a petition for execution of judgment and decree dated 22.8.1997 passed by the Court of learned Civil Judge, Junior Division, Mohindergarh, in civil suit No.987 of 1990, which was upheld by learned District Judge, Narnaul in civil appeal No.68 of 1997 and cross-objections no.80 of 1997 were also decided on 4.10.2010 and further affirmed by this Court in RSA No.4044 of 2000. Respondent no.l filed objection petition under Order XXI Rule 97 of the Code of Civil Procedure (hereinafter to be referred as the Code), which were dismissed by learned Executing Court vide order dated 5.2.2004. Against the said order, respondent no.1-plaintiff filed civil appeal No.248 of 2005 before learned Additional District Judge, Narnaul, which was dismissed on 30.4.2008.
7. Against the same the plaintiff preferred ESA No.72 of 2008 before this Court, which was also dismissed vide order dated 12.3.2010.
8. Naresh Kumar son of respondent no.1-plaintiff also filed a civil suit titled as Naresh Kumar v. Municipal Committee, Mohindergarh, Chiman Lal, Bhim Sain, Sewati Bai claiming himself to be the owner in possession of the suit property and the said suit was also dismissed by learned trial Court vide judgment and decree dated 24.1.2005. Naresh Kumar preferred a civil appeal No.l51/RT of 2005/200
