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2007(3) LAW HERALD (P&H) 2305
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice R.S. Madan
R.S.A. No. 465 of 1976
Rachhpal Singh
v.
Sohan Singh
{Decided on 25/04/2007}
(B) Civil Procedure Code, 1908, Section 100—Second Appeal—Law points—None of the parties have suggested the law points involved in the case—Duty is cast upon the High Court to frame the law points.
(Para 11)
(C) Civil Procedure Code, 1908, Order 41, Rule 27—Production of additional evidence in Appellate Court—Second appeal—Application for additional evidence was moved after a gap of 23 years—Appellant had not exercised due diligence in securing these documents—Consecutive finding of fact recorded by the two courts below—High Court should refrain itself to interfere in the finding of fact recorded by the Courts below—Application dismissed. (Para 39)
(D) Civil Procedure Code, 1908, Order 6, Rule 17—Amendment of plaint—Second appeal—Finding of fact recorded by the two Courts below—Proposed amendment cannot be allowed being time barred—Proposed amendment would take away the valuable right which has accrued to the party. (Para 46)
(E) Civil Procedure Code, 1908, Order 6, Rule 17—Amendment of plaint—The Court has to see whether the amendment can be refused if it is bar by some statutory provision of law—Or that the party has acquired a right which cannot be compensated with cost—It is not a question of delay that has to be taken into a account. (Para 45)
R.S. Madan, J.- This Regular Second Appeal No.465 of 1976 has a checkered history and the same is described as under.
2. The plaintiff-appellant has filed a civil suit for possession by way of redemption of land measuring 25 kanals 5 marlas as detailed in the heading of the plaint, situated in village Bhatoya, Tehsil & District Gurdaspur on payment of Rs.370/-.
3. It is the case of the plaintiff Rachhpal Singh that Sansar Singh his father had mortgaged certain land in village Phulkian with Beli Ram, father of the defendant in the year 1939 for Rs.370/- in Pakistan. After partition of the country, the plaintiff was allotted land in village Bhatoya in lieu of the land left by his father in village Phulkian. The defendant (now respondent) was allotted mortgagee rights. After the death of the father of the plaintiff the plaintiff claimed that he is entitled to redeem the land on payment of Rs.370/- from the respondent.
4. The aforesaid suit was contested by the defendant by filing written statement. He denied that the father of the plaintiff had mortgaged any land with the father of the defendant, so the question of redeeming of the land was also denied. From the pleadings of the parties following issues were framed:
(1) Whether the mortgage in question is subsisting and if so, on the payment of what amount it is redeemable? opp
(2) Whether the plaintiff is entitled to redeem the suit land? OPP
5. Both the parties adduced evidence in support of their contentions raised in the pleadings.
6. The learned Trial Court while disposing of the issue No.1 & 2 together was of the view that the plaintiff has not led any sufficient evidence to prove that there subsists any mortgage of the land which could be redeemed. The only evidence led by the parties was ocular version of the plaintiff and his witness Bishambar Singh, whose testimony was not accepted to be true by the Court, so the findings on both the issues were returned against the plaintiff. Resultantly, the suit was dismissed.
7. Aggrieved by the impugned judgement and decree of dismissal of the suit the plaintiff filed a Civil Appeal No.30/22 of 1974 before the Court of Sh. K.C. Dewan, Senior Sub-Judge exercising Enhanced Civil Appellate powers, Gurdaspur. The learned first appellate court endorsed the finding on issue Nos.1 and 2 recorded by the learned sub-Judge, First Class and dismissed the appeal finding no merit in it.
8. The litigation further advanced by filing the Regular Second Appeal No.465 of 1976 before this Court.
9. During the pendency of the Regular Second Appeal before this Court an application was moved under order 23 Rule 3 read with Section 151 of the CPC, whereby the appellant/applicant claimed that Sohan Singh had executed a receipt on 28.03.1977, whereby he had accepted the claim of the appellant/applicant on payment of Rs.370/- and the mortgage stands redeemed. To vouch safe the validity of the receipt dated 28.03.1977 this Court vide order dated 12.03.1984 sought the report of the Sub-Judge First Class, Gurdaspur about the genuineness of the receipt. On receipt of the report dated 6.8.1984 of the Sub-Judge First Class, Gurdaspur, the trial Court was of the view that receipt Exhibit RP/1 is forged and fabricated document and it was never executed by Sohan Singh defendant respondent nor he received any mortgage money. After the receipt of the report, this Court vide its order dated 22.01.1985, dismissed the Regular Second Appeal with costs, on the ground that there is no documentary evidence available on the record which suggests that any mortgage had taken place between the parties or whether it still exists or not.
10. Aggrieved by the dismissal of the Regular Second Appeal, the plaintiff filed Civil Appeal No.5205 of 1993 before the Apex Court, which was disposed of by the Hon’ble Supreme Court on 24.09.1993 with the direction to the High Court to dispose of the appeal afresh on merits.
11. It is pertinent to mention here that none of the parties hav
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