Ram Dass Dang vs Om Parkash and Others

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India by Ram Dass Dang-one of the legal representatives of original defendant no. 1 Thana Ram (since deceased), challenge has been laid to order dated 30.05.2013 (Annexure P-1), passed by learned lower appellate court, thereby allowing application (Annexures P-3 and P-5) filed by respondent no. 1-plaintiff (appellant before the lower appellate court) for additional evidence. First appeal by the plaintiff has been filed against judgment dated 03.04.2007 (Annexure P-2) passed by the trial court, thereby decreeing counter-claim filed by defendant no. 1 Thana Ram. The said judgment Annexure P-2 and the first appeal, in which impugned order Annexure P-1 has been passed, do not pertain to the suit filed by respondent no. 1-plaintiff.

The plaintiff, by way of additional evidence, sought to produce certified copy of sale deed 01.01.1986, statement of Ram Dass Dang (petitioner) as DW-1 in this very suit, and copy of jamabandi for the year 1980-81.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner referred to application dated 13.06.1996 (Annexure P-7) filed and withdrawn by the plaintiff in the suit. However, said application has no relevance to the instant revision petition. In the suit, some application had been filed on behalf of Thana Ram - defendant no. 1 along with Vakalatnama. In application Annexure P-7, plaintiff alleged that defendant no. 1 was being impersonated in making the said application and accordingly, plaintiff prayed for rejection of the said application. Contention of counsel for the petitioner that the said application had been filed by the plaintiff to place on record the same sale deed is completely misconceived and untenable. No such prayer was made in the said application for producing the sale deed in evidence. The only prayer made in the application Annexure P-7 was that application and Vakalatnama filed on behalf of defendant no. 1 be rejected.

Counsel for the petitioner next referred to judgment dated 13.09.2010 (Annexure P-8), passed by this Court in Regular Second Appeal filed by the plaintiff against dismissal of his suit by the two courts below. By the said judgment dated 13.09.2010 (Annexure P-8), the suit was remanded to the trial court for fresh decision after giving one more opportunity to the plaintiff to produce his evidence. Thereafter, the suit has been decreed partly vide judgment dated 10.06.2011 (Annexure P-9). Counsel for the petitioner contended that in spite of said one opportunity granted by this Court vide judgment Annexure P-8, the plaintiff did not produce aforesaid documents in his evidence in the suit. However, this contention is also completely irrelevant and misconceived because first appeal, in which impugned order has been passed, has not arisen out of judgment Annexure P-9 passed by the trial court, pursuant to remand of the suit, vide judgment Annexure P-8. On the other hand, impugned order has been passed in appeal preferred against judgment Annexure P-2, whereby only counter-claim of defendant no. 1 was adjudicated and was decreed.

Counsel for the petitioner, relying on two judgments of Hon''ble Supreme Court namely Union of India (UOI) Vs. Ibrahim Uddin and Another, and Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, , contended that the proposed additional evidence could not have been allowed in first appeal. This contention is also untenable. Lower appellate court has recorded a finding that the documents appeared to be necessary for proper adjudication of the matter in controversy between the parties. On this ground, additional evidence can certainly be allowed in first appeal being within parameters of Order 41 Rule 27 of the Code of Civil Procedure. In addition to the aforesaid, the documents in question are not likely to be fabricated. There is registered sale deed dated 01.01.1986 and jamabandi for the year 1980-81. The said documents are not likely to be fabricated. Besides it, statement of the petitioner himself made in the same suit is sought to be produced by additional evidence. The petitioner possibly could have no objection to the same.

For the reasons aforesaid, I find that additional evidence, sought to be produced by respondent no. 1-plaintiff has been rightly allowed by the lower appellate court. However, the plaintiff should have been subjected to costs for permitting the additional evidence at the stage of first appeal. Except regarding cost part, there is no perversity, illegality or jurisdictional error in the impugned order of the lower appellate court.

I intend to dispose of the instant revision petition by imposing costs on respondent no. 1, without issuing notice to him so as to avoid further delay in disposal of the first appeal and also to save the respondent no. 1 of the financial burden he may have to bear in engaging counsel for the revision petition, if notice of the same is issued to him. Accordingly, the instant revision petition is dismissed except that respondent no. 1-plaintiff (appellant before the lower appellate court) shall pay Rs. 7,500/- as costs precedent for the additional evidence that has been permitted by the lower appellate court.