Sharwan Kumar vs Nand Kishore Malhotra and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India with a prayer for quashing impugned order, Annexure P1 passed by learned trial Court vide which application filed by Petitioner-Defendants for adducing additional evidence, was dismissed.

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of the present revision petition are that, a suit for possession by way of partition of property in dispute was filed by Respondent No. 1-Plaintiff against present Petitioner and Respondents No. 2 to 4 on the basis of will allegedly executed by his father in his favour. Both the parties are real brothers. Another Will has been set up by the present Petitioner. Suit was contested. Issues were framed. Evidence of both the parties were recorded. Case was fixed for arguments when the present application was filed, which was dismissed by learned trial Court vide impugned order, by observing as under:

After hearing learned Counsel for the parties and having gone through the case file very carefully, I am of the considered opinion that the present application is without any merit and same is thus, liable to be dismissed as documents in question could very well be produced on file when Defendant No. 1 was leading evidence. Saying that at that time, these documents were not traceable and Defendant No. 1 was under depression, is no ground to allow additional evidence especially when there is nothing on record to prove the said assertions made in the application. The documents in question were very much in existence, when Defendant No. 1 was leading his evidence and thus, it is clear that at that time, he did not exercise due diligence. Even otherwise, considering the documents on merit, in my considered opinion, same are not essential to the just decision of this case. The mere fact that conveyance deed in original pertaining to House No. 438-L, Model Town, Yamuna Nagar, was with Defendant No. 1, is no ground to assume that Will dated 25.09.1999 is false and fabricated. Further, the fact that account No. 5684 was not in the name of Shiv Dass alone rather it was in joint names of Shiv Dass and Sarwan Kumar Defendant No. 1 and amount of Rs. 1,00,000/-was withdrawn by Defendant No. 1 on 06.11.2000 also does not impinge upon legality of the Will dated 25.09.1999, as set up by Plaintiff. Judgments in Surender Kumar v. Prem Lata 1997(2) CCC 512 (P&H) and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr. 2010 (1) Apex Court Judgments 268 (SC), in the light of discussion above, have no bearing upon the facts of this case. Hence, finding no merit in the application, same is hereby dismissed. To come up on 02.04.2010 for rebuttal evidence and arguments.

It has been contended by learned Counsel for the Petitioner that though documents sought to be adduced in additional evidence were in possession of the Petitioner-Defendant and however, they could not be produced earlier as the Petitioner-Defendant was under depression.

Prayer has been opposed by learned Counsel for Respondent No. 1 - Plaintiff on the plea that Petitioner-Defendant is having no right to adduce additional evidence as the documents were in his possession and that he could produce the same when he was leading evidence as the same are also per se admissible.

Law is well settled by Hon''ble Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India 2005 (3) RCR 530 that even after deletion of Order XVIII Rule 17A of the Code of Civil Procedure, additional evidence can be allowed if it is shown that evidence was not in the knowledge of the party, or that the evidence could not be produced after due diligence.

However, case of present Petitioner is not covered by any of the said parameters laid down by Hon''ble Apex Court in the aforesaid authority.

Moreover, law has been well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 by Hon''ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

There is no merit in the present revision petition. The same is, hereby, dismissed.