Punjab-Haryana High Court
Rajnish vs Suman on 28 September, 2023
Neutral Citation No:=2023:PHHC:126833
2023:PHHC:126833
CR-1419-2022 -1-
116 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-1419-2022
DECIDED ON: 28.09.2023
RAJNISH .....PETITIONER
VERSUS
SUMAN .....RESPONDENT
CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL.
Present: Mr. Ashwani Gaur, Advocate
for the petitioner.
Mr. Gaurav Tyagi, Advocate
for the respondent.
VIKRAM AGGARWAL, J (ORAL)
1. The present revision petition assails the order dated 24.03.2022
(Annexure P-7) passed by the Additional District Judge, Faridabad vide which
the application filed by the respondent-defendant under Order 41 Rule 27 CPC
for leading additional evidence was allowed.
2. The facts, as emanating from the revision petition, are that the
petitioner-plaintiff filed a suit for declaration that the mutation No.2176/2250
dated 06.07.2016 was null and void and was not binding upon the rights of the
parties. A decree of permanent injunction restraining the respondent-defendant
from alienating the suit property or changing its nature and creating any third
party rights etc. was also sought. The case set up by the petitioner-plaintiff was
that he was the owner in possession of different parcels of land to the extent of
his share (fully described in the plaint) situated in Village Karnera, Tehsil
Ballabgarh, District Faridabad. It was averred that the father of the petitioner-
plaintiff had executed a Will dated 17.11.2015 vide which he had bequeathed the
suit property in favour of the petitioner-plaintiff. As per the petitioner-plaintiff,
he had come into possession of the suit land during the lifetime of his father. The
suit land was said to be the self acquired property of the father of the petitioner-
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plaintiff. On 01.08.2017, the petitioner-plaintiff came to know that the
respondent-defendant, in collusion with the revenue authorities, had got mutation
of the suit land executed in her favour to the extent of half share. She had also
threatened the petitioner-plaintiff that she would alienate the land. Under the
circumstances, the suit was filed.
3. The suit was resisted by the respondent-defendant. The basic stand
taken was that no Will had been executed by the father of the parties and that the
same was a forged and fabricated document. It was averred that the mutation had
rightly been sanctioned.
4. The suit was decreed by the Court of the Civil Judge (Junior
Division), Faridabad vide judgment and decree dated 27.11.2018, leading to the
filing of an appeal by the respondent-defendant.
5. During the pendency of the appeal, an application was moved by
the respondent-defendant under Order 41 Rule 27 CPC for leading additional
evidence. It was averred in the application that the respondent-defendant had
come to know that the petitioner-plaintiff had himself submitted an affidavit to
the revenue authorities on 29.04.2016 for sanctioning of the mutation which was
subsequently challenged by the petitioner-plaintiff. The stand taken in the
application was that once the petitioner-plaintiff had himself given an affidavit
for sanctioning of the mutation, he would not be entitled to challenge the same.
6. The application was opposed by the petitioner-plaintiff and the
averments made therein were denied.
7. By way of the impugned order dated 24.03.2022, the Court of
Additional District Judge, Faridabad allowed the application leading to the filing
of the present revision petition.
8. I have heard learned counsel for the parties and have also perused
the paper book.
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9. Learned counsel for the petitioner-plaintiff submitted that the First
Appellate Court erred in allowing the application at the first appellate stage and
grave injustice had been caused to the petitioner-plaintiff. It was submitted that
the respondent-defendant could not be permitted to fill up the lacunae since the
trial Court had already given a decision against the respondent-defendant and the
respondent-defendant was simply trying to change her stand.
9.1 It was submitted that the mutation was sanctioned in the year 2016
and the suit was filed in the year 2017. Even the written statement was filed by
the respondent-defendant in the year 2017 and that it was for the respondent-
defendant to check the relevant record before filing her written statement.
Learned counsel contended that the respondent-defendant had not been able to
show that she had been diligent enough in defending her case and producing the
relevant evidence at the relevant time.
9.2 Learned counsel submitted that by allowing the application,
virtually a written statement was permitted to be amended at the stage of the
appeal which would not be permissible. In support of his contentions, learned
counsel placed reliance upon the judgments passed by the Hon'ble Apex Court in
Civil Appeals Nos.543 and 544 of 1985 and No.1084 of 1986 titled as 'Syed and
Company and Others Vs. State of Jammu and Kashmir and Others', 1995
(Sup4) SCC 422 and Civil Appeal Nos.7898-7900 of 2002 titled as 'State of
Gujarat and Another Vs. Mahendra-kumar Parshottambhai Desai (D) by LRs',
2006 AIR (Supreme Court) 1864.
10. On the other hand, learned counsel for the respondent-defendant
submitted that there is no illegality or infirmity in the impugned order. It was
submitted that the mutation had come to the notice of the respondent-defendant
at a subsequent stage and, therefore, the application for additional evidence was
moved. It was submitted that the evidence sought to be produced would be
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essential for the just decision of the case.
11. I have considered the submissions made by learned counsel for the
parties.
12. The facts are not in dispute. The dispute is between a brother and a
sister with regard to the land which belonged to their father. The petitioner-
plaintiff claims that the entire land had been bequeathed to him by way of a Will
dated 17.11.2015 and that the mutation No.2176/2250 dated 06.07.2016 had been
got sanctioned by the respondent-defendant in collusion with the revenue
authorities.
12.1 On the contrary, the stand of the respondent-defendant from the
very beginning was that the Will is a forged and fabricated document and that the
mutation had validly been sanctioned.
12.2 The trial Court decreed the suit while upholding the Will and
consequently finding that the mutation could not survive.
13. During the pendency of the appeal filed by the respondent-
defendant, she is stated to have acquired the knowledge of a very important fact
that her brother i.e the petitioner-plaintiff had filed an affidavit before the
revenue authorities in which it had been requested that mutation be sanctioned.
She sought to produce this additional evidence at the appellate stage. In the
considered opinion of this Court, this evidence would be very important for the
just decision of the case. No doubt, the Will has been upheld by the trial Court.
However, the appeal against the decision of the trial Court is pending. The
dispute, of course, shall be decided on its own merits. However, if the petitioner-
plaintiff had himself given an affidavit that the mutation be sanctioned, the final
result of the litigation may change. In the considered opinion of this Court, the
First Appellate Court did not commit any illegality in allowing the application.
At the cost of repetition, it needs to be mentioned that the evidence sought to be
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led by the respondent-defendant at the appellate stage would be essential for the
just decision of the case.
14. The argument that permitting the respondent-defendant to lead
additional evidence would amount to an amendment in the written statement is
also devoid of merit because the fact came to the notice of the respondent-
defendant at a later stage and, therefore, she could always have raised the plea. In
so far as the written statement is concerned, the stand from the very beginning
was that the mutation had validly been sanctioned. Under the circumstances, the
plea of the respondent-defendant would not change and no amendment of the
written statement would be required.
15. I have perused the judgments relied upon by learned counsel for the
petitioner-plaintiff. In the case of Syed and Company and Others (Supra), it was
held by the Hon'ble Apex Court that evidence cannot be let in without pleadings.
In that case, a suit for recovery had been filed by the State of Jammu and
Kashmir against Syed and Company and Others. The suit was dismissed. First
appeal was preferred. During the pendency of the appeal, an application under
Order 41 Rule 27 was preferred. The same was rejected by the High Court on
two grounds, one that it was hopelessly belated and second that the party could
not be allowed to lead evidence on a plea not taken by it in the pleadings. The
Hon'ble Apex Court upheld the order of the High Court. However, this judgment
would not come to the aid to the petitioner-plaintiff as in that case, there was no
pleading with regard to which evidence was sought to be led. In the present case,
as is already been observed, the stand of the respondent-defendant from the very
beginning was that the Will is a forged and fabricated document and that the
mutation had validly been sanctioned. The leading of additional evidence would
be to prove the averment that the mutation had been validly sanctioned and it
cannot be said that the additional evidence would amount to evidence without
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there being pleadings in that regard. In the case of State of Gujarat and Another
(Supra), applications for additional evidence had been dismissed by the High
Court of Gujarat while dismissing the main appeals. In this case, while
interpreting the provisions of Order 41 Rule 27 CPC, the Hon'ble Apex Court
held that the provisions of Order 41 Rule 27 did not entitle the Appellate Court to
let in fresh evidence at the appellate stage and that it was for the applicant to
show that despite efforts diligently made by the appellant, such evidence was not
within its knowledge. This judgment would also not help the petitioner-plaintiff,
since it is the specific case of the respondent-defendant that she had acquired
knowledge of the affidavit submitted by the petitioner-plaintiff just prior to the
filing of the application for additional evidence. Under the circumstances, it
cannot be said that the respondent-defendant had not acted with due diligence.
Even otherwise, as has been observed in the preceding paragraphs, the evidence
sought to be produced at the appellate stage would be essential for the just
decision of the case and under the circumstances, the First Appellate Court
rightly allowed the application for additional evidence.
In view of the aforementioned facts and circumstances, I do not
find any merit in the present revision petition and the same is accordingly
dismissed.
(VIKRAM AGGARWAL)
28.09.2023 JUDGE
Prince Chawla
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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