Smt. Koshalya vs Smt. Shakuntla and Others

Vijender Singh Malik, J.—In the suit brought by Jawala Parsad and Krishan Lal, plaintiffs against 26 defendants for possession of a

residential house and shops situated in village Bhakli, Tehsil Kosli, District Rewari, defendant No. 15 Smt. Koshalya, had filed an application for

permission to adduce additional evidence in the shape of copies of mutation No. 1530 sanctioned in the year 1977 and the copies of jamabandies

for the period subsequent thereto up to date with regard to the property, to which the mutation related. Her application filed under the provisions

of section 151 CPC has been dismissed by learned Additional Civil Judge (Sr. Divn.), Kosli vide order dated 09.09.2011.

It is this order, which is challenged before me by Smt. Koshalya, defendant No. 15, by way of this revision petition brought under the provisions

of Article 227 of the Constitution of India.

The petitioner had claimed that her previous counsel misguided her and on account of the same, she could not produce these documents.

According to her, these documents are per se admissible in evidence and their production would neither delay the disposal of the suit nor would

cause any prejudice to the opposite party. Therefore, the prayer was made.

The application was opposed, claiming that the petitioner was having knowledge about the mutation and she had been contesting three suits

regarding the property in dispute up to the court of learned District Judge, Rewari and was represented by her counsel in the present case. It is

further claimed that after leading oral as well as documentary evidence, she had closed her evidence through her counsel on 28.01.2010.

It is further averred that she cannot take benefit of her own wrongs. It is also averred that there is no such pleading on her behalf in her written

statement and therefore this evidence cannot be allowed to be led being beyond pleadings. Lastly, it is averred that there is no provision in the

CPC for permitting additional evidence after the amendment in the Code of Civil Procedure.

Hearing learned counsel for the parties, learned trial court has agreed with the plea of the plaintiff that there was no provision for leading

additional evidence in the CPC . According to him, change of counsel cannot give a ground for leading additional evidence. Lastly mentioning that

she had closed her evidence through her counsel after availing a number of opportunities, the application has been dismissed.

I have heard Shri B.K. Bagri, learned counsel for the petitioner and have gone through the record.

Learned counsel for the petitioner has submitted that the documents are not required to be pleaded in the written statement. According to him, a

document cannot be excluded from the evidence for the only reason that it is beyond pleadings. According to him, the documents sought to be

produced by way of additional evidence are from the revenue record, the genuineness of which cannot be held in doubt. He has further submitted

that even if the petitioner was at fault in not bringing the evidence at the proper time or had been negligent in any other manner, she cannot be

deprived of the opportunity to bring the evidence of this nature on record. According to him, the interest of justice requires these documents to be

produced on the file.

An application for additional evidence cannot be dismissed for the reason that the provision of leading additional evidence is no more in the

Code of Civil Procedure. Section 151 CPC gives jurisdiction to the civil court to take steps to advance the cause of justice. The requirement for

additional evidence only comes when the evidence of the party is already over. In most of the cases, the evidence of the party is closed by the

party itself. So for allowing an application for additional evidence, it is not required that the evidence of the party should be closed by the order of

the court.

Change of counsel may not by itself give ground to the petitioner to lead additional evidence. However, the petitioner is a woman and she

deserves some latitude in this regard for her being a woman, not conversant with the procedure of the court. Moreover, the documents sought to

be produced are from the revenue record and their genuineness is beyond doubt. By the production of such documents , it cannot be said that the

other party would be prejudiced.

In these circumstances, learned trial court was not justified in declining the prayer of Smt. Koshalya, petitioner for additional evidence in the

shape of copies of mutation No. 1530 sanctioned in the year 1977 and the jamabandies for the period subsequent thereto up to date.

Consequently, I allow the revision petition and set aside the impugned order, directing learned trial court to allow additional evidence subject to

payment of Rs. 5000/- as costs, for which one clear opportunity may be granted to the petitioner.