Hardayal Singh vs Punjab National Bank and others

D.V. Sehgal, J.—This revision is directed against the order dated May 1, 1987 passed by District Judge, Narnaul whereby he has allowed an application of the Punjab National Bank (Respondent No. 1 herein) under Order 41 Rule 27 of the CPC (for short ''the code'') and has directed the trial Court to afford one and only one opportunity to it to lead evidence to prove mortgage deed Exhibit P-17. The Defendant No. 1 Petitioner is aggrieved against this order. When the petition came up for motion hearing, S.P. Goyal, J (as he than was) passed, inter alia the following order:

Contends that the mortgage deed already stood exhibited and there was no need to examine any witness to prove the same.

It has been contended before me by Mr. Jain learned Counsel for the Petitioner that mortgage deed Exhibit P-17 had been admitted into evidence without its proof warranted by Section 68 of the Indian Evidence Act, 1872. He further contends that in fact the Petitioner had denied its execution and despite that it was admitted into evidence and marked as Exhibit P-17. Since, however, it had not been proved on record in accordance with law, the same was rejected by the trial Court. He, therefore, submits that by invoking the provisions of Order 41 Rule 27 of the Code, the Bank now wants to fill in the lacuna in its evidence and fasten the liability on the Petitioner on the basis of the said mortgage deed. His second submission is that according to the settled law the learned District Judge ought to have decided the application for additional evidence on hearing final arguments in the appeal. Then alone could he appreciate whether the additional evidence sought to be produced is necessary for adjudication of the appeal. For his foregoing submissions, he relied upon Natha Singh v. Financial Commissioner Taxation Pb. and Ors. 1976 R. L. R. 398, and Karan alias Karan Singh and Others Vs. Parkash Chand, .

I have considered the above submissions, the learned District Judge has rightly exercised his jurisdiction. The learned trial court had wrongly admitted mortgage deed into evidence when it had been proved in accordance with the provisions of law and in fact its execution had been denied by the Petitioner. Later, however, the learned trial court rejected the mortgage deed for the reason that it had not been validly proved. It therefore, did not accept the claim of the bank on the basis of the mortgage deed qua the Petitioner. It is thus, not a case where it can be said that the mortgage deed stood admitted in evidence and there is no need to examine any witness as to prove the same. 1 The case, in fact, is otherwise.

No doubt, in the normal circumstances an application under Order 41 Rule 27 of the code should be decided by the appellate court when it applied its mind to the merits of the appeal and that can only be when final arguments in the appeal are heard. In the present case however, the mortgage deed was received in evidence without its proof and was consequently rejected by the trial court at a later stage. It is, thus obvious that the claim against the Petitioner could not be sustained in appeal unless the mortgage deed is proved by leading evidence in accordance with Section 68 of the Indian Evidence Act, J872. Adjudication of appeal on merits shall take place only after an opportunity to lead evidence on the point is given to the bank

I am quite conscious of the plea taken by the Petitioner that the bank is now trying to fill in the lacuna in its evidence but the mistake appears to lie with the trial court which admitted the mortgage deed into evidence without its formal proof in accordance with law. Probably, had it not done so, the bank would have been obliged to lead the requisite evidence. It is, therefore, not a case of mere filing in the lacuna in the evidence.

I am, however, of the view that since the bank had been negligent in proving the basic document viz. mortgage deed Exhibit P-17 to establish its claim against Respondent No. 1, the costs of Rs. 200/-awarded by the learned District Judge are quite inadequate, which I enhance to Rs. 500/-. The additional evidence shall be received by the learned trial court subject to payment of Rs. 500/- as costs.

Consequently, I find no merit in the revision petition which is dismissed subject to the modifications made above There shall, however, be no order as to costs so far as this revision petition is concerned.

The parties through their counsel are directed to appear before the trial court on December 15, 1988 when it shall proceed to afford an opportunity to the Petitioner to lead evidence in pursuance of the impugned order of the learned District Judge.