Additional Evidence – Document sought to be produced on record was in advertently left by counsel of petitioner – Application allowed.

Mr. Anmol Rattan Singh, J. - This revision petition has been filed by the contesting defendant in a suit filed by the respondents-plaintiffs, seeking separate possession of the suit property, which is stated to be a residential house measuring 4 marlas in village Mehatpur, Tehsil Nakodar, District Jalandhar, by partition thereof. The petitioner seeks setting aside of the order, Annexure P-6, passed by the learned Civil Judge (Junior Division), Nakodar, on 18.12.2014, by which an application filed by the petitioner-defendant, seeking to lead additional evidence, has been dismissed.

2. Notice having been issued in this petition on February 26, 2015, with the trial Court directed not to pass the final order at that stage (the said interim order still continuing), though the respondents are all seen to be finally served only on 26.05.2016, even thereafter they have not put in any appearance, either personally or through counsel. Consequently, on the date that judgment was reserved in this petition (August 03, 2018), they were ordered to be proceeded against ex parte.

A perusal of the impugned order shows that in her application, the petitioner had contended that she could not prove a registered will dated 19.02.2010, executed by her mother, Pushpa Rani (also mother of respondents no.1 to 3 herein), in her affirmative evidence, because the original will was not traceable at that time. However, since it had been traced out, the petitioner-defendant sought that it be allowed to be led by way of additional evidence, in the interest of justice.

3. Notice having been issued by the learned trial Court in the said application, the respondents-plaintiffs had opposed it on the ground that with both parties already having led their evidence, with the evidence of the defendant (petitioner) already having been closed and she also having referred to the will in her affidavit tendered by way of her examination-in-chief, she should not be allowed to lead such additional evidence at that stage, as she very well knew of the existence of the document and therefore she could not allow to fill up lacuna later.

4. Having considered the pleadings and arguments of both parties, the learned trial Court recorded a finding that as regards the suit property which was sought to be partitioned by the plaintiffs, the petitioner herein had claimed her right to that property on the basis of the said will and in paragraph 2 of her written statement she had contended that a photocopy of the will was ‘attached with the written statement’, with her having referred to the said document as Ex.D1 in her affidavit tendered as her examination-in-chief.

She had also stated in paragraph 2 of the said affidavit that she had brought the original registered will to Court; but a perusal of the Court file showed that even the photocopy thereof was not actually on record, with there being no document exhibited as Ex.D1.

(This finding was recorded by the trial Court after having seen the original document produced in Court by the petitioner on the date that the impugned order was passed. Thereafter, it is recorded in the impugned order that there was no order of the Court to the effect that the original document had been seen and returned.)

5. It is next recorded in the impugned order that the defendant had closed her oral evidence on 18.07.2014, but even at that time she had not testified to the effect that the will had been either misplaced or was lost and was not traceable, nor had she made a prayer by proving any photocopy by way of secondary evidence.

Noticing as above, it was eventually held by that Court that the petitioner was trying to fill up a lacuna at the end of the trial and further, that she had abused the process of law by misrepresenting that she had brought the original registered will which had been seen and returned.

On the aforesaid grounds, the application was dismissed with costs of Rs.1000/- imposed upon the petitioner, to be paid in the Legal Aid