Reopening evidence requires justifiable reasons; delay in application undermines merit.

JUDGMENT

1. The present petition underArticles 226 and 227 of the Constitution of Indiahas been preferred, inter alia, with a prayer to quash and set aside the order dated 28-01-2013, passed by the learned 5th Additional Senior Civil Judge, Mahesana (“the Trial Court” for short) below the application at Exh.200, the order dated 08-04-2013 passed by the Trial Court below the application for review of the aforestated order at Exh.211, and the order dated 20-07-2013 passed by the learned Additional District Judge, Mahesana (“the Appellate Court” for short) in Civil Misc. Appeal No. 33 of 2013.

2. The brief factual background of the case is as follows:

The petitioner is the plaintiff in Regular Civil Suit No. 204 of 2007, wherein it is inter alia prayed that the Sale Deed in respect of the suit property, executed by Defendant No. 1 in favour of Defendant No. 2 (respondents herein) on the basis of an allegedly forged Power of Attorney and other fabricated documents, be declared as fraudulent and null and void. During the trial, the petitioner preferred an application at Exh.62, praying that certain documents be given tentative Exhibit Numbers. By an order dated 03-08-2010, the Trial Court granted the prayer and the documents mentioned in the application were given tentative Exhibit Numbers. Thereafter, the petitioner moved a closing Pursis at Exh.19, on 29-09-2010, for closure of her evidence, as no other witnesses were required to be examined. Defendant No. 1 led his evidence. After completion of the evidence of Defendant No. 1 by closing Pursis dated 17-07-2012, the Suit reached the stage of leading evidence by Defendant No. 2, who filed his affidavit in examination-in-chief. At this stage, the petitioner filed the application at Exh.200, for reopening her right to lead evidence. This application has been rejected vide order dated 28-01-2013, by the Trial Court. The petitioner preferred an application at Exh.211, for review of the aforestated order, before the Trial Court which was rejected vide order dated 08-04-2013. Aggrieved by the above two orders, the petitioner filed Civil Misc. Appeal No. 33 of 2013, before the Appellate Court. The said appeal has been dismissed by order dated 20-07-2013. Aggrieved by the above-mentioned orders, the petitioner has approached this Court.

3. Mr. Asit M. Mehta, learned advocate for the petitioner has submitted that the Trial Court has failed to appreciate the factual and legal position correctly and has thereby caused injustice to the petitioner by rejecting her application for re-opening her right to lead evidence. That, after the petitioner moved the closing Pursis and the evidence came to be closed, she discovered that the report of the Forensic Science Laboratory (”FSL” for short) is required to be proved, which has not been done. Secondly, it is to be proved that the lay-out plan produced by the Defendants is false and fabricated, as the original plan is with the petitioner. Thirdly, the letter of the Mamlatdar, Mahesana, has to be proved and he is to be examined in this regard. It is further submitted that as per the settled principles of law, the petitioner ought to have been granted an opportunity to lead additional evidence to prove her case. That, the Trial Court has not considered the above aspects while rejecting the applications made by the petitioner at Exhs.200 and 211, respectively. Learned Advocate for the petitioner has further submitted that the Appellate Court has not taken into consideration the aspect that the petitioner has a right to lead evidence and that the need arose for reopening the said right after the closure of evidence, when it was discovered that certain documents are required to be proved and witnesses examined, as the petitioner had no knowledge regarding the same before closure of her evidence. It is submitted that the impugned order of the Appellate Court has been passed without application of mind as certain judgments cited by the petitioner have been wron