Master Ayush & Anr vs Saroti Devi
2023 Latest Caselaw 15634 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO No. 43 of 2023.

Date of decision: 7th October, 2023.

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Master Ayush & Anr. ...Petitioners.

                                         Versus

    Saroti Devi                                                             ....Respondent.

    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1

For the Petitioners: Mr. Anuj Gupta, Advocate.

For the Respondent: Ms. Bhawna Dutta, Advocate.

Satyen Vaidya, Judge (Oral).

By way of instant petition, the petitioner has

assailed order dated 5th December, 2022, passed by learned

Additional District Judge-II, Shimla, in Case No. 27-S/13 of

2018, whereby the application of respondent herein under

Order 41, Rule 27 of the Code of Civil Procedure (for short

"Code") for additional evidence has been allowed and the

matter has been remanded to learned trial Court for limited

purpose of recording the evidence.

Whether reporters of the local papers may be allowed to see the judgment?

...2...

2. The facts as have emerged from the records

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produced by way of instant petition are that the petitioners

herein filed a suit for declaration that Will dated 05.08.1999

executed by late Shri Gian Chand was not a genuine

documents and by virtue of inheritance, they had inherited

the estate of late Shri Gian Chand. The trial Court decreed

the suit. Respondent herein/defendant assailed the decree

passed by the learned trial Court before the learned First

Appellate Court and during the pendency of that appeal, an

application for additional evidence was filed by the

defendant/respondent herein, which has been allowed vide

impugned order, as noticed above.

3. Learned counsel for the petitioners/plaintiffs has

submitted that the witness now sought to be examined by the

defendant was within the knowledge of the defendant right

from the beginning and and at the time of leading of evidence

before the learned trial Court neither the name of such

witness was mentioned in the list of witnesses nor any

attempt was made to examine him. In such view of the

matter, the provision of Order 41, Rule 27 (aa) of the Code

...3...

though created impediment in the grant of prayer for

.

additional evidence, but the learned First Appellate Court had

completely ignored the said provisions and had proceeded to

allow the prayer by exceeding jurisdiction vested in it under

law.

4. On the other hand, learned counsel for the

respondent/defendant has supported the order. It has been

mentioned that the witness now sought to be examined is one

of the attesting witness of the Will, which is the subject

matter of the dispute between the parties. The said witness

was not available earlier on account of his ailment and the

defendant had produced sufficient proof in this regard before

the learned First Appellate Court.

5. I have heard learned counsel for the parties and

have also gone through the entire record carefully.

6. As regards compliance of Order 41, Rule 27(aa) of

the Code, the defendant produced the medical record of the

witness sought to be produced by way of additional evidence

to show that he was not available on earlier occasion or at

least at the time when the defendant had led her evidence

...4...

before the learned trial Court. The learned First Appellate

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Court has passed the impugned order after satisfying itself as

to the necessity of the additional evidence for complete and

effective adjudication of the dispute inter se the parties.

Order 41, Rule 27 of the Code vests the Appellate Court with

jurisdiction to allow the additional evidence, if such evidence

appears to such Court necessary to enable it to pronounce

judgment and for other any substantial cause. Thus, no

jurisdictional error can be found in the impugned order.

7. Even otherwise, the facts of the case are not

disputed. The dispute inter se the parties revolve around the

validity of Will dated 05.08.1999 executed by late Shri Gian

Chand. In this view of the matter, the additional evidence

sought to be brought on record cannot be said to be

irrelevant. The plaintiffs are not going to suffer any prejudice

as they will get ample opportunity to cross-examine the

witness and further also will get the opportunity to rebut the

same, if so required.

8. For the foregoing reasons, there is no merit in the

instant petition and the same is accordingly dismissed.

...5...

9. Pending applications, if any, also stand disposed of.

.

(Satyen Vaidya)

Judge 7th October, 2023.

         (jai)




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