Ishwar Singh vs Surat Singh and Others

L.N. Mittal, J.—Plaintiff Ishwar Singh has invoked the jurisdiction of this Court under Article 227 of the Constitution of India by filing this revision petition to impugn order dated 19.9.2011(Annexure P2) passed by learned Additional Civil Judge (Senior Division), Kosli thereby dismissing the application (Annexure P1) moved by the plaintiff-petitioner for additional evidence. I have heard Learned Counsel for the parties and perused the case file.

Plaintiff-petitioner has filed suit inter alia challenging the consent decree dated 2.2.1993 passed in Civil Suit titled "Surat Singh vs. Smt. Anandi etc." on the ground that the said decree was passed on the basis of impersonation of Anandi by some other lady.

In application for additional evidence, the plaintiff alleged that he was earlier not aware as to who impersonated for his mother Anandi in the aforesaid suit in which decree dated 2.2.1993 was passed, but after the plaintiff closed the evidence, on 8.1.2010, defendant No. 1 Surat Singh declared that his mother-in-law Sumitra, who had impersonated as Smt. Anandi by affixing thumb impressions on written statement and statement made in the Court in the previous suit on behalf of Anandi, has also expired and now the plaintiff will not be able to get the decree dated 2.2.1993 set aside. Thereupon, plaintiff got compared disputed thumb impressions allegedly of Anandi in previous suit with standard thumb impressions of Sumitra available in some partition case and the same have been found to have been affixed by the same person. It may be mentioned that both Sumitra and Anandi have since died. The plaintiff accordingly wanted to examine Handwriting and Finger Print Expert, Record-keeper and Ahlmad with record of the partition case and the Civil Suit in which decree dated 2.2.1993 was passed, and Rishal Singh Advocate and the plaintiff himself as witnesses by way of additional evidence. The said application has been dismissed by the trial Court vide impugned order dated 19.9.2011 (Annexure P2) which is under challenge in this revision petition.

I have heard Learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner contended that application for additional evidence was moved even before evidence of defendants commenced in the suit and therefore, the application should have been allowed because the aforesaid fact that Sumitra had impersonated as Anandi to suffer decree dated 2.2.1993 came to the knowledge of the plaintiff after the plaintiff had closed his evidence. On the other hand, Learned Counsel for the respondents contended that now evidence of defendants has also since been closed and the suit is fixed for rebuttal evidence and there is no reason to allow proposed additional evidence.

I have considered the rival contentions raised by Learned Counsel for the parties. The plaintiff-petitioner could not be aware earlier as to who had impersonated for his mother Anandi in the suit in which the decree dated 2.2.1993 was passed against Anandi. However, now the plaintiff has learnt that Sumitra had impersonated as Anandi and therefore, proposed additional evidence is necessary to be adduced.

Plaintiff has made out sufficient ground for permitting him to adduce additional evidence. He moved application (Annexure P1) promptly even before the defendants had commenced their evidence. Consequently, there was no reason for dismissing application (Annexure P1). Impugned order of the trial Court, therefore, suffers from illegality and jurisdictional error because the trial Court refused to exercise jurisdiction which vested in it to permit proposed additional evidence of the plaintiff. Accordingly, the instant revision petition is allowed. Impugned order (Annexure P2) passed by the trial Court is set aside. Application (Annexure P1) moved by plaintiff-petitioner in the trial Court for additional evidence is allowed. Plaintiff-petitioner is permitted to produce the proposed additional evidence before the trial Court. Thereafter, defendants shall be permitted to lead further evidence, if any.