Daljit Kaur vs Amarjit Kaur and Others

Rakesh Kumar Jain, J.

The plaintiff has challenged order dated 17.04.2014, allowing an application filed by defendant No. 1 for additional evidence, at the stage of rebuttal and arguments. In brief, the plaintiff filed the suit for declaration that she along with defendants are owner in possession in equal shares of the estate of their mother Jaswant Kaur @ Bant Kaur and mutation No. 18450 dated 17.07.2001 sanctioned on the basis of the alleged Will dated 12.02.2001 is illegal, null and void as Jawant Kaur @ Bant Kaur had never executed any Will and also prayed for permanent injunction to restrain defendant No. 1 from alienating the suit property of more than her share, in any manner. Defendant No. 2 was proceeded against ex parte on 04.07.2013 and hence, the suit was contested by defendant No. 1 only, who filed the written statement and counter-claim dated 18.07.2013 in which she had set up a registered Will dated 12.02.2001 executed by Jaswant Kaur @ Bant Kaur. In the counter-claim, defendant No. 1 also prayed for permanent injunction to restrain the plaintiff and defendant No. 2 from alienating the suit property of more than their share, as mentioned in the Will dated 12.02.2001.

It may be pertinent to mention here that the plaintiff and defendants No. 1 and 2 are the three daughters of Jaswant Kaur @ Bant Kaur and in the suit, the plaintiff has claimed that their mother died intestate, however, the suit is not contested by defendant No. 2 but defendant No. 1 has alleged that she died after executing the Will dated 12.02.2001. The plaintiff also filed the written statement on 20.09.2013 to the counterclaim filed by defendant No. 1 and on 10.10.2013 the issues were framed. Defendant No. 1 examined DW1 Baltej Singh (husband of defendant No. 1) and DW2 Fateh Singh, alleged scribe of the Will in support of her case and her oral evidence was closed by the Court on 30.11.2013. The said order reads as under:--

"DW-1 Baltej Singh and DW-2 Fateh Singh are present and examined. Learned counsel for defendant has requested for adjournment which is opposed. Perusal of file reveals that defendant has availed various opportunities but has failed to conclude entire defendant evidence. In these circumstances, oral evidence of defendant is closed by order.

Now to come upon 20.12.2013 for evidence of plaintiff and documentary evidence of the defendant. Sh. O.P. Garg, Advocate is appointed as Local Commissioner for recording evidence of plaintiff on the same terms and conditions. His fee is assessed to be Rs. 500/- to be payable by defendants. Plaintiffs are directed to produce their evidence before the Local Commissioner on the date intimated by local commission to the parties. Local commissioner shall submit his report on 20.12.2013."

Thereafter, the plaintiff appeared as her own witness as PW1 and closed her evidence after tendering certain documents. On 28/29.01.2014, the arguments were heard in the case and it was adjourned to 19.02.2014 for pronouncement of the orders. However, in between, on 11.02.2014, defendant No. 1 filed an application for leading additional evidence to prove the original Will by examining Gurmeet Singh son of Surinder Singh and Handwriting and Fingerprint Expert to prove the signatures of deceased Surinder Singh Lambardar, an attesting witness to the Will dated 12.02.2001.

The application was contested by filing reply dated 04.03.2014 but vide the impugned order dated 17.04.2014, the application has been allowed and the said order has been challenged now by way of this revision petition.

Learned counsel for the petitioner-plaintiff has argued that once the oral evidence of the respondent-defendant No. 1 was closed on 30.11.2013 and defendant No. 1 had the opportunity to examine Gurmeet Singh son of Surinder Singh and Handwriting and Fingerprint Expert to prove the signatures of deceased Surinder Singh Lambardar, as out of the two attesting witnesses, namely, Major Singh, who alleged to have been won over and Surinder Singh Lambardar, who alleged to have expired, defendant No. 1 could have proved the signatures of Surinder Singh Lambardar in terms of Section 69 of the Indian Evidence Act, 1872 (herein-after referred to as the "Act") but no such effort was made at that time and his oral evidence was closed. The said order was not challenged by way of revision in this Court for examining Gurmeet Singh son of Surinder Singh Lambardar and the Handwriting and Fingerprint Expert. In this regard, he has relied upon the following judgments of this Court:--

"1. Tarlok Singh Vs. Sohan Singh and Others, ;

Sukhdev Singh Vs. Gurmukh Singh, ;

Atma Singh and Another Vs. Bhupinderpal Singh and Others, ; and

Bhim Raj and Others Vs. Jai Bhagwan and Others, ."

On the other hand, learned counsel for defendant No. 1/respondent has submitted that though after deletion of the provisions of Order 18 Rule 17-A of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") by the amending Act of 2002, the Apex Court, in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), has held that the right to produce additional evidence at a later stage by way of additional evidence has not been taken away by the deletion of the said provision as the Court is always having inherent powers to exercise the jurisdiction for advancement of justice under Section 151 of the CPC. The said decision in Salem Advocate Bar Association''s case (supra) has been followed by this Court in the case of Krishan Kumar Sardana Vs. Sita Ram Adalakha and Another, . It is also submitted that the procedure is the hand-made justice, meant to advance the cause than to thwart the same. The procedural wrangles cannot be allowed to stay in the way of grant of substantial justice. In support of his submission, he has relied upon the following judgments:--

"1. Phool Chand Jain v. Smt. Jotri Devi Jain, 2002 (1) R.C.R. (Civil) 233;

Pooja and Others Vs. Jagdish Singh, ;

Mohan Lal Vs. Bhim Sain and Another, ;

Jagdish Kumar Vs. Smt. Manjit Kaur, ; and

Rajesh Kumar v. Mangat Rai and others, (2012-2)170 PLR 334."

I have heard learned counsel for the parties and perused the record.

The facts are not much in dispute that the plaintiff and defendants No. 1 and 2 are the daughters of Jaswant Kaur @ Bant Kaur and the plaintiff has claimed property of her mother on the basis of the natural succession, whereas only defendant No. 1 is claiming the suit property on the basis of a Will. It had been recorded in the order dated 30.11.2013 that defendant No. 1 had availed various opportunities to conclude her entire evidence and as such her oral evidence was closed by order of the Court. This order remained unchallenged and just before the date of pronouncement of order, an application was filed by defendants No. 1 to lead oral evidence, by way of additional evidence, by way of examining Gurmeet Singh son of Surinder Singh Lambardar (since deceased), alleged attesting witness of the Will dated 12.02.2001 and Handwriting and Fingerprint Expert to prove the signatures of said Surinder Singh Lambardar on the Will dated 12.02.2001.

Section 68 of the Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least is called for the purpose of proving its execution and Section 69 of the Act provides that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.

Defendant No. 1 has alleged that there were two alleged witnesses of the Will, namely, Major Singh and Surinder Singh Lambardar. Surinder Singh Lambardar has already expired whereas Major Singh is alive but allegedly won over. Defendant No. 1 could have examined Gurmeet Singh son of Surinder Singh Lambardar or the Handwriting and Fingerprint Expert to prove signatures of Lambardar on the Will, alleged to have been attested by him, when defendant No. 1 was leading her oral evidence as both Gurmeet Singh as well as the Handwriting and Fingerprint Expert were available and it is not the case of defendant No. 1 that Surinder Singh Lambardar could not be examined due to some lapse on her part and had expired after closure of her oral evidence.

The judgment relied upon by learned counsel for the plaintiff are all laying down the same proposition that if the evidence is closed by the order of the Court, which is not challenged by way of revision otherwise and became final, the defendant cannot be allowed to produce the same evidence by way of additional evidence as it would tantamount to circumvent the order of closure of oral evidence by order of the Court until and unless sufficient ground is advanced for not leading that evidence at the appropriate stage.

In Tarlok Singh''s case (supra), this Court has also observed that examination of expert by way of additional evidence after a long time is not permissible as only that evidence can be led by way of additional evidence which was not within the knowledge of the defendant and cannot be led despite the best efforts.

As regards the judgments relied upon by counsel for defendant No. 1 are concerned, in Phool Chand Jain''s case (supra), the documents sought to be produced on record were judicial record and certified copies of revenue records which were per se admissible in evidence.

In Pooja and others'' case (supra), the documents are pedigree table maintained by the Patwari in the revenue record and considered to be a public document and per se admissible in evidence and not required to be proved formally.

In Mohan Lal''s case (supra), the application was filed to produce copies of judgment and decree-sheet of all the previous litigation regarding the suit property which were held to be per se admissible.

In Jagdish Kumar''s case (supra), the additional evidence sought to be produced were judgment of Civil Court, electricity bill and ration card which cannot be manufactured by the plaintiff after closure of his evidence and in Rajesh Kumar''s case (supra), certified copies of the appeal, vakalatnama, written statement and power of attorney were sought to be produced by way of additional evidence as their photocopies were already on record.

Thus, all these judgments, relied upon by learned counsel for the respondent are relating to leading of documentary evidence which were more or less per se admissible in evidence unlike the evidence which is sought to be produced by way of additional evidence in the present case in the form of oral evidence by examining Gurmeet Singh son of Surinder Singh Lambardar to prove signatures of Surinder Singh Lambardar, which could have been done by defendant No. 1 at the time of leading her evidence in affirmative or if she was so aggrieved, could have challenged the order of closure of her evidence by way of revision to avail an opportunity for leading the said oral evidence but in any case, keeping in view the facts and circumstances of the present case, such kind of oral evidence cannot be allowed to be led by way of additional evidence especially when the case was fixed for pronouncement of order, after having been argued on the basis of the evidence on record, to fill up the lacuna left by defendant No. 1 in her evidence. In view of the aforesaid discussion, the impugned order is found to be patently erroneous, suffering from material illegality and irregularity and hence, the same is hereby set aside, though without any order as to costs.