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PUNJAB & HARYANA HIGH COURT
Dr. Bharat Bhushan Parsoon, J.
Manmohan Singh —Petitioner
versus
Davinder Kaur @ Mohinder Kaur @ Gurminder Kaur & Ors. —Respondents
Civil Revision No. 1765 of 2014
Decided on 20.5.2014
Counsel for the Parties:
For the Petitioner:Mr. Mandeep S. Sachdev, Advocate.
For the Respondents:Mr. Vikram Anand, Advocate.
IMPORTANT POINT
When evidence is essential there is no bar qua its reception at any stage even if stage is of conclusion of arguments.
Headnote:Civil Procedure Code, 1908—Section 151—Evidence Act, 1872—Section 69—Reception of evidence—When evidence is essential there is no bar qua its reception at any stage even if stage is of conclusion of arguments—Amended provisions of Code contemplate and expect a trial court to hear arguments immediately after completion of evidence and then proceed to judgment—However, if there is a time gap between completion of evidence and hearing of arguments, for whatsoever reason and if in that interregnum a party comes across some evidence which he could not lay his hands earlier or some evidence in regard to conduct or action of other party comes into existence, court may in exercise of its inherent power under section 151 of Code, permit the production of such evidence if it is relevant and necessary in interest of justice, subject to such terms as court may deem fit to impose. (Paras 15 and 16)
Result: Civil Revision Petition allowed.
Dr. Bharat Bhushan Parsoon, J.—Vide this civil revision petition preferred under Article 227 of the Constitution of India, order dated 12.02.2014 (Annexure P9) passed by the Civil Judge (Junior Division), Jalandhar whereby application of the petitioner- defendant for leading additional evidence was dismissed with costs of Rs.1,000/-, is under challenge.
2. Even earlier to the impugned order, application for leading additional evidence preferred by the petitioner-defendant having been dismissed by the lower court was challenged in a similar fashion in this Court wherein vide order of 16.08.2013 accepting plea of the petitioner-defendant that the application resulting in order of 16.04.2013 was not happily drafted as important facts had remained unpleaded, had allowed the petitioner- defendant to move a proper application by stating correct position before the lower court.
3. When claim of the petitioner-defendant is that registered Will of 09.05.1994 in his favour needs proof for which he is required to examine Swaran Singh witness to prove signatures of the testator Smt. Haripal Kaur on the Will, stand of the respondent- plaintiff per contra is that relevant witnesses of the Will have already been examined by the petitioner-defendant and this repeat exercise by making application for additional evidence, is nothing but a delaying tactic.
4. Hearing has been provided to the counsel for the parties while going through the paper book.
5. The respondent-plaintiff had filed a suit for declaration claiming herself to be owner in possession of the land on the basis of inheritance. Repudiating such claim, the petitioner-defendant has set up a case of testamentary succession propounding Will dated 09.05.1994 from owner-testator Smt. Haripal Kaur. Concedingly, attesting witness Devender Singh has expired whereas another attesting witness Lamberdar Ajit Singh has left India to permanently settle in New Zealand. The petitioner-defendant has already examined Mohinder Singh, real brother of attesting witness Ajit Singh to prove his signatures on the Will. Similarly, Kulbir Singh, brother of Devinder Singh yet another attesting witness (since deceased) has also been examined by the petitioner-defendant. It is not disputed that the scribe of the Will has also settled abroad and the Sub-Registrar who registered the said Will, is also no more.
6. The petitioner-defendant now wants to examine yet another witness Swaran Singh by way of additional evidence to identify the signatures of executant testator Smt.Haripal Kaur of the stated Will. When questioned as to why Swaran Singh sought to be examined in additional evidence was not examined earlier when other two witnesses to prove signatures of the attesting witnesses. Counsel for the petitioner-defendant has fairly conceded that counsel for the defendant in the lower court at that time had omitted to do so but has urged that being an important witness as he is to prove signatures of the testator, the petitioner-defendant cannot afford to proceed with the suit further, leaving this witness unexamined.
7. Counsel for the respondent-plaintiff has urged that provision for leading additional evidence i.e. Order XVIII Rule 17-A CPC no more exists on the statute book and even otherwise, arguments in the suit had already been advanced for rendering the judgment finally and thus, there is no stage of leading any evidence further by the petitioner-defendant. It is claimed that neither this evidence is necessary for adjudication of the matter in controversy between the parties nor the move of the petitioner-defendant is genuine and bona fide and rather, clearly smacks of a ploy to delay and dilate the adjudication of the suit which is pending since 07.11.2008 (Annexure PI).
8. No doubt, provision of Order XVIII Rule 17-A CPC meant for production of evidence not previously known or which could not be produced despite due diligence, hitherto existing in the Code of Civil Procedure, 1908 has been repeal
