Inderjit Singh and Another vs Kamaljit Kaur and Another

P.S. Patwalia, J.—The present revision petition is directed against order dated 3.12.2003 vide which an application filed by the plaintiffs for comparing the thumb impression of Kamaljit Kaur defendant No. 1 with that of Manjit Kaur wife of Balbir Singh existing on the sale deed dated 17.6.1996 has been declined. The relevant facts are that the petitioners, who are plaintiffs, had filed a suit for declaration to the effect that the plaintiffs are owners in possession of the suit land on the basis of a will dated 8.2.1990 executed by Balwinder Singh. One Kamaljit Kaur was impleaded as defendant No. 1 who was allegedly married to said Balwinder Singh.

Prior to the filing of this application, the plaintiffs have raised a contention that Kamaljit Kaur had married one Balbir Singh son of Ujjagar Singh after changing her name as Manjit Kaur. The plaintiffs had initially therefore moved an application for amendment of the plaint to plead the aforesaid fact that Kamaljit Kaur widow of Balwinder Singh had re-married and was living with one Balbir Singh. The application for amendment was disallowed by the trial Court.

A revision petition was filed by the plaintiffs in this Court being Civil Revision No. 3673 of 1999. The plea for amendment was not accepted. However, the revision was disposed of with the following directions:

The contention raised by Mr. Jasbir Singh, could not be controverted by learned Counsel for the respondents. In view of this Court as well, the petitioner should have been permitted to lead evidence with regard to re-marriage of Kamaljit Kaur and her living with Balbir Singh. This object could not achieved even without amending the plaint inasmuch as the fact aforesaid can lend support to validity of the will, onus whereof is naturally on the petitioner. The Court is given to understand that original pleadings made in the plaint with regard to desertion of Balwinder Singh by his wife during the life time of former have since been sought to be substantiated by leading evidence. If that be so, naturally, the factum of Kamaljit Kaur remarrying after demise of Balwinder Singh would be in support of original pleadings only. It is to this extent, therefore, that interfere in the impugned order has become necessary. In view of what has been said above, the order under revision is modified to say that the petitioner would be allowed one opportunity to lead evidence on the point mentioned above, to which respondent widow would naturally be given chance to rebut. In the interest of justice as well, this limited interference is required in the impugned order.

With the above observations, the revision petition is disposed of.

After this the proceedings in the trial Court continued and the petitioners herein filed an application for recalling defendant No. 1, respondent No. 1 herein, for further cross-examination. While the trial Court allowed the application, this Court in Civil Revision No. 3565 of 2000 set aside that order. The petitioners then approached the Hon''ble Supreme Court. The Hon''ble Supreme Court allowed a SLP filed by the petitioners with the following observations:

In view of the aforesaid order the trial court was fully justified in allowing the application of the appellant and permitting respondent/defendant to be further cross examined. The High Court committed an error in setting aside the order of the trial court. For the aforesaid reasons we allow the appeal, set aside the order of the High Court and restore that of the trial court. We, however, make it clear that further cross examination of the respondent would be restricted to the aspect allowed by the High Court in its order dated 26th November, 1999 disposing of Civil Revision No. 3673 of 1999. No costs.

After this order of the Hon''ble Supreme Court, respondent No. 1 was called for further cross-examination. The petitioners, plaintiffs in the suit, summoned the witnesses from Ludhiana to produce documents for further cross examination of defendant No. 1, respondent No. 1 herein, and it is only thereafter that she was called for further cross-examination. During the course of further cross-examination, she denied her thumb impressions on a sale deed executed by Manjit Kaur wife of Balbir Singh dated 17.6.1996. It was contended by learned Counsel for the petitioners before me that she had even denied her photographs on the sale deed. Without any delay thereafter the petitioners moved the present application for additional evidence for examining an expert for comparing the thumb impressions of respondent No. 1 with those of the sale deed dated 17.6.1996. The present application has been rejected by the trial Court.

On examining the facts, I am of the opinion that this Court in Civil Revision No. 3673 of 1999 had allowed the petitioners an opportunity to lead evidence on the point as to whether defendant No. 1 in the suit Kamaljit Kaur had changed her name as Manjit Kaur who married Balbir Singh. Thereafter when the plaintiffs wanted to recall her for further cross examination on the same point that right was also granted by the Hon''ble Supreme Court.

It is only during the said cross-examination when she denied the execution of the sale deed and also her photographs thereon that the plaintiffs immediately moved an application without any delay that thumb impressions of defendant No. 1 be compared with the thumb impressions of Manjit Kaur on the sale deed dated 17.6.1996. I am of the opinion that the application moved by the plaintiffs was well merited. Once this Court as also the Hon''ble Supreme Court had granted a right to the plaintiff-petitioners to lead evidence in support of the fact that Kamaljit Kaur had in fact changed her name as Manjit Kaur and had remarried, the request made by the plaintiff-petitioners by way of the present application was a natural corollary to establish the same fact and should have been granted.

Learned Counsel for respondent No. 1 states that the petitioners are unnecessarily delaying the proceedings. He further submits that additional evidence as sought for by the petitioners should not be allowed at this stage. He has relied upon judgments in Gurdev Singh and others Vs. Mehnga Ram and another, ; Prataprai N. Kothari Vs. John Braganza, ; Mahavir Singh and Ors v. Naresh Chandra and Anr. AIR 2001 SC 134; N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, ; Vasantha Viswanthan and Others Vs. V.K. Elayalwar and Others, ; and Salem Advocate Bar Association Vs. Union of India (UOI), .

I am afraid, I cannot agree with the contention of learned Counsel for the respondent. The application has been filed by the plaintiffs for additional evidence. If in this process the proceedings in the suit get delayed the plaintiffs would also suffer as the decision of the suit would also be delayed.

The first judgment referred to by the learned Counsel for the respondent in Gurdev Singh''s case (supra) relates to a situation where the Appellate Court allowed additional evidence. The Hon''ble Supreme Court held that when the appeal was pending for final hearing, the High Court should not have interfered while exercising jurisdiction u/s 115 CPC. The order passed by the Appellate Court allowing additional evidence should have been challenged at the stage of filing of a regular second appeal. Similar is the position in Mahavir Singh''s case (supra). This is, however, not the position in the present case. The aforesaid judgments would therefore have no application to the facts of this case. In Prataprai N. Kothari''s case (supra) an observation had been made in para 10 that in the absence of any plea, evidence on that point is not admissible.

In that case, additional evidence was admitted in the High Court. In the present case, however, in earlier orders passed by this Court and the Hon''ble Supreme Court, the petitioner-plaintiffs have been given liberty to adduce evidence on the point whether Kamaljit Kaur had married one Balbir Singh by changing her name as Manjit Kaur. The said judgment will also have no application on the facts of the present case. The factual position in N. Kamalam''s case (supra), Vasantha Vishwanathan''s case (supra) and Salem Advocate Bar Association''s case (supra) is totally different and those judgments would also have no application to the facts of the present case.

For the reasons aforementioned, the revision petition is allowed and the order of the trial Court dated 3.12.2003 is set aside. The trial Court would permit the petitioners to lead an expert evidence to compare the thumb impressions of respondent No. 1/defendant No. 1 Kamaljit Kaur with those of Manjit Kaur wife of Balbir Singh on the sale deed dated 17.6.1996.