Prem Kumar vs Ramdhari and others

L.N. Mittal, J.—Defendant no. 2 Prem Kumar has filed this revision petition under Article 227 of the Constitution of India assailing order dated 18.07.2011, passed by learned Civil Judge (Junior Division), Jalandhar, thereby dismissing application moved by defendant no. 2-petitioner for leading evidence on additional issue no. 7-A framed in the suit. Suit was filed by plaintiff Balroop against his two sons Ram Kishan - defendant no. 1 (proforma respondent no. 3 herein) and Prem Kumar - defendant no. 2 (petitioner herein). He sought mandatory injunction directing the defendants to hand-over the vacant possession of the suit property. He also claimed recovery of license fee and mesne profits.

During pendency of the suit, original plaintiff Balroop died. His other two sons Ramdhari and Gumraj (respondents no. 1 and 2 respectively herein) were impleaded as his legal representatives.

By amendment of plaint, respondents no. 1 and 2 set up Will dated 24.05.2006, allegedly executed in their favour by Balroop - original plaintiff. On application of respondents no. 1 and 2, additional issue no. 7-A was framed to the following effect :

"Whether the Will dated 24.05.2006 is validly executed in favour of the beneficiaries? OPP"

After framing of aforesaid additional issue, counsel for respondents no. 1 and 2 closed their evidence on the issue without leading any further evidence. The trial court adjourned the case for rebuttal evidence and final arguments. However, defendant no. 2, by moving application, prayed for opportunity to lead evidence on the aforesaid additional issue. The said prayer has been declined by the trial court vide order dated 18.07.2011, which is under challenge in this revision petition.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner contended that the aforesaid additional issue was framed at the instance of respondents no. 1 and 2/legal representatives of original plaintiff and onus thereof is also on them, and therefore, defendant no. 2 cannot be denied opportunity to lead evidence on the said issue after the said issue was framed.

Counsel for respondents no. 1 and 2 contended that defendants had already led their evidence even regarding the alleged Will being not valid, and therefore, defendants are not entitled to lead any further evidence after framing of additional issue because they had already closed their evidence before framing of this issue.

I have carefully considered the rival contentions.

Additional issue no. 7-A has been framed on the plea of respondents no. 1 and 2 that Will was executed in their favour by Balroop. Onus of the issue is also on respondents no. 1 and 2. Consequently, after framing of additional issue, opportunity had to be given to the defendants to disprove the said issue. This opportunity could not be denied merely because after framing of additional issue, respondents no. 1 and 2 did not lead any further evidence, nor because defendants had already led some evidence that the Will was not valid. When specific additional issue no. 7-A regarding valid execution of the Will has been framed, defendants have a right to lead evidence on the said issue. Impugned order of the trial court is patently perverse and illegal, and therefore, unsustainable. Impugned order suffers from jurisdictional error because the trial court refused to exercise jurisdiction which vested in it.

For the reasons aforesaid, instant revision petition is allowed. Impugned order dated 18.07.2011 passed by the trial court is set aside. Application (Annexure P-8) moved by defendant no. 2-petitioner is allowed and the trial court is directed to grant reasonable opportunity to defendant no. 2-petitioner for leading evidence on aforesaid additional issue no. 7-A. Since the suit is of the year 2004, the trial court shall decide the suit as expeditiously as possible.