The court affirmed that allowing additional evidence is within the inherent powers of the court under Section 151 of the CPC, provided it serves the ends of justice and is not actuated by malafide intent.

JUDGMENT

Karamjit Singh, J.

Present civil revision petition has been filed by the petitioners/defendants seeking setting aside of the impugned order dated 15.1.2019 passed by the Court of learned Civil Judge, Junior Division, Rohtak whereby an application filed by the respondents/plaintiffs for permission to lead additional evidence in civil suit titled Mukhtiar Singh (Now deceased) through LRs and others v. Ayushi and another, has been allowed.

2. Brief facts of the case are that initially, Mukhtiar Singh respondent No.1, his son Sandeep respondent No.2, and daughter Rekha @ Seema respondent No.3 filed suit for partition of the suit property against daughters of Ravinder Singh pre-deceased son of Mukhtiar Singh through their natural guardian/mother Neelam on the ground that the suit property was owned by Ram Devi wife of Mukhtiar Singh and she died on 16.5.2000 and on her death, the suit property was inherited by her husband Mukhtiar Singh, son Sandeep, daughter Rekha to the extent of 1/4th share each and by the petitioners jointly to the extent of remaining 1/4th share. The suit filed by the respondents was decreed vide judgment dated 29.8.2013 by the Court of Civil Judge, Junior Division, Rohtak. The appeal filed by the petitioners against the said judgment was allowed by the Court of Additional District Judge, Rohtak and the matter was remanded back to the trial Court for a fresh decision. Thereafter, during the pendency of the suit, Mukhtiar Singh died and respondent No.2-Sandeep was impleaded as his legal heir on the basis of registered Will stated to be executed by Mukhtiar Singh in his favour during his life time. The original plaint was also got amended wherein it was pleaded that Mukhtiar Singh died on 13.12.2016 and during his life time, the deceased executed a registered Will dated 22.5.2016 in favour of his son Sandeep with regard to his 1/4th share in the suit property. Thereafter, both the parties led their evidence and when the suit was fixed for rebuttal evidence, the respondents filed an application to lead additional evidence to produce and prove the aforesaid registered Will dated 22.05.2016 executed by Mukhtiar Singh in favour of his son Sandeep.

3. The application was contested by the petitioners. However, the learned trial Court allowed the said application and granted two opportunities to the respondents to produce and prove the Will in question executed by Mukhtiar Singh subject to costs of Rs.5000/- vide impugned order dated 15.1.2019.

4. Being aggrieved, the petitioners have filed the present revision petition against the order dated 15.1.2019.

5. I have heard the counsel for the parties.

6. Counsel for the petitioners has inter alia contended that the impugned order is not sustainable in the eye of law. It has been further contended that after the death of Mukhtiar Singh, the respondents got amended the plaint and took plea that the registered Will dated 22.5.2016 was executed in favour of Sandeep by his father Mukhtiar Singh. He has further submitted that on the completion of the pleadings, the learned trial Court framed issues and thereafter, the respondents availed number of opportunities to conclude their evidence but at that time, no efforts were made by the respondents to produce and prove the aforesaid Will in question in accordance with the provisions of Evidence Act. The application for additional evidence was filed by the respondents at the stage when even the petitioners also concluded their evidence and the case was fixed for rebuttal evidence, if any and arguments.

7. Counsel for the petitioners has further contended that evidence of the respondents was already closed by order by the learned trial Court on 14.2.2018 and the said order was never challenged in any manner by the respondents and thus, became final; that in the given circumstances, the respondents cannot be allowed to produce and prove Will in question by way of additional evidence as it would tantamount to circumvent order d