Shiv Onkar Sharma vs Anita Rani and Others

Ram Chand Gupta, J.

C.M. No. 8714-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 2185 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 18.3.2011, Annexure P3, passed by learned Civil Judge, Junior Division, Hisar, vide which application filed by Petitioner for additional evidence has been dismissed.

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

Facts relevant for the decision of present revision petition are that parties belong to the same family. Dispute is regarding inheritance of property left by Jagdish Rai, deceased, who was allotted the property in dispute in the year 1966. He died in the year 1978 leaving behind Subhash Chander, son and six daughters including mother of present Petitioner. Subhash Chander, Respondent No. 2 filed a suit in the year 1980 for declaration on the basis of alleged family settlement, which was withdrawn. He filed another suit in the year 1983 on the basis of family settlement, which was decreed against four sisters and not against mother of present Petitioner. Wife of Subhash Chander-Respondent No. 2, i.e., Respondent No. 1 filed another suit, i.e., suit No. 971 of 1985 for declaration against remaining two sisters including mother of the Petitioner, in which husband of Respondent No. 1, i.e., Subhash Chander-Respondent No. 2 suffered a statement admitting claim of his wife. However, during the pendency of the said suit, another suit was filed by Respondent No. 1-Anita Rani on 23.12.1985 against other two sisters of Subhash Chander including mother of present Petitioner, in which statement was suffered by Subhash Chander, Respondent No. 2, in favour of his wife, i.e., Respondent No. 1, and on the basis of the said statement, the suit was decreed, which has been challenged by present

Petitioner-Plaintiff on the plea that the said decree was a result of fraud. The suit was contested by Respondents No. 1 and 2-Defendants. Issues were framed. Evidence of both the parties were recorded. Case was fixed for rebuttal and arguments when the present application for additional evidence was filed by Petitioner-Plaintiff, which was declined by learned trial Court vide impugned order, mainly on the ground that there was delay on the part of Petitioner-Plaintiff in filing the present application for additional evidence.

Petitioner-Plaintiff has sought to produce by way of additional evidence, plaints, judgments, decrees and orders passed by Hon''ble Court in Civil Suit Nos. 259 of 1980 and 314 of 1983. Plea has been taken that he could not file copies of those documents at the time when he was leading evidence, as the same came to his notice when statement of DW2-Sudesh Sharma was recorded. It has been contended that the other sisters of Subhash Chander including Sudesh Sharma were impleaded as parties lateron on an application filed under Order 1 Rule 10 read with Section 151 of the CPC (hereinafter to be referred as ''the Code'').

It has been contended by learned Counsel for the Respondents that fact regarding Suit No. 314 of 1983 was mentioned in application under Order 1 Rule 10 read with Section 151 of the Code filed by Smt. Ravi Kanta etc. and other sisters of Subhash Chander.

Be that as it may, the factum of filing of previously instituted suits, i.e., suits of the years 1980 or 1983 were not in the knowledge of present Petitioner when he was leading evidence and the same came to his knowledge when after his evidence was closed, an application under Order 1 Rule 10 read with Section 151 of the Code was filed by other sisters of Subhash Chander, in which statement of Sudesh Sharma was recorded.

Law has been well settled by Hon''ble Apex Court in Salem Advocate Bar Association v. Union of India 2005(3) RCR 530 that even after deletion of Order XVIII Rule 17 of the Code of Civil Procedure, additional evidence can be allowed only if Plaintiff is able to show that the documents were not in his knowledge and that he could not produce the same at the time evidence was being led, despite due diligence.

In this case Petitioner-Plaintiff has been able to show that after adducing his evidence, he came to know about the said fact. However, there is some negligence on the part of the Petitioner as he had filed the application for additional evidence few months after the factum of filing of previously instituted Suit Nos. 259 of 1980 and 314 of 1983 came to his knowledge, after taking some dates for rebuttal evidence. However, for that purpose, the other party can be compensated by way of cost.

In view of the aforementioned facts, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to grant one opportunity to Petitioner-Plaintiff to produce and prove plaints, judgments and decrees, orders, if any, passed by Court below in Civil Suits No. 259 of 1980 and 314 of 1983 at his own responsibility, subject to payment of Rs. 5,000/-as cost, which shall be a condition precedent.

Disposed of accordingly.