Gurmukh Singh v. Sarwan Singh & Ors.

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vikas Bahl, Advocate for the petitioner **** RAKESH KUMAR GARG J. Respondent No.1 filed a suit for declaration against the petitioner and others to the effect that he was owner in possession of the suit property and entries in the column of cultivation in the jamabandi for the year 1992-93 in the names of defendants(including petitioner) on the basis of alleged exchange were wrong. Consequential relief of permanent injunction was also sought. The aforesaid suit was decreed by the Civil Judge(Senior Division), Nawanshahar, vide judgment and decree dated 07.02.2005. Petitioner filed an appeal against the aforesaid judgment and decree before the Lower Appellate Court and the same is stated to be pending. During the pendency of the aforesaid appeal before the Lower Appellate Court, petitioner moved an application under Order 41 Rule 27 for permission to lead evidence in the shape of jamabandis for the year 1967-68, 1972-73, 1977-78, 1982-83, 1987-88, 2002-03 and 2007-08 Civil Revision No.4782 of 2010(O & M) 2 khasra girdawari Sauni 1971 and Hari to Sauni 2007 and motor tubewell connection in the name of Didar Singh in exchanged land by Sarwan Singh in favour of Didar Singh etc. It was alleged that they were in possession of the land in dispute since 1965 being owners by way of exchange which finds mention in the revenue record. It was stated that the aforesaid documents are essential to arrive at the correct conclusion and the application for additional evidence is moved at the earliest and without wasting any time and therefore the same be allowed. The aforesaid application was contested by the respondents. The Lower Appellate Court vide impugned order dated

05.06.2010 rejected the aforesaid application observing that the documents were in the knowledge of applicant-petitioner and there was no due diligence on their part to produce the same and the court cannot become a party to fill up lacuna by way of additional evidence. While passing the impugned order, the Court also observed that some of the record sought to be produced is already on the record. It was also found that the petitioners have moved an application under Order 18 Rule 17 CPC before the trial Court for leading additional evidence and the same was dismissed vide order dated 14.06.1999 and revision against the aforesaid order was allowed vide order dated 17.08.1999 subject to payment of Rs.3000/- but the petitioner failed to avail that opportunity to tender those documents. Thus, keeping in view the conduct of the petitioner and the facts and circumstances of the case, the Lower Appellate Court rejected the prayer of the petitioner.

Challenging the aforesaid order, learned counsel for the petitioner vehemently argued that this Court in the case of Surjit Kaur and anr.vs. Bhupinder Singh Waraich 2009(4)RCR (Civil)563 has laid down that the application under Order 41 Rule 27 for leading additional evidence Civil Revision No.4782 of 2010(O & M) 3 can be decided only at the time of deciding the appeal and therefore the aforesaid impugned order is liable to be set aside. However, learned counsel for the petitioner was unable to substantiate his argument on the basis of the aforesaid judgment. The judgments of the Hon'ble Supreme Court in the case of M/s Eastern Equipment & Sales Ltd.vs. Ing. Yash Kumar Khanna 2008(4) RCR (Civil) 508 and Jaipur Development Authority vs. Kailashwati Devi 1997(4) RCR(Civil)97 relied on by this Court in Surjit Kaur's case(Supra) were based on the facts and circumstances of their own case and are not applicable in the present case.

Faced with this, learned counsel did not press the aforesaid argument. However, learned counsel for the petitioner raised the argument that in spite of due diligence the revenue record could not be proved earlier and it was only when the entire record was carefully perused at the time of hearing of the appeal then it was realized that most relevant entries were in the earlier jamabandis which could not be produced earlier. It was further argued by learned counsel for the petitioner that the said documents were necessary for the just decision of the case and therefore the impugned order is liable to be set aside. I have heard learned counsel for the petitioner. There is no dispute with the settled proposition of law that in case the court requires any document to enable it to pronounce judgment or for any other substantial cause, the same can be allowed to be adduced as additional evidence under Order 41 Rule 27.

However, in the present case, admittedly, the petitioner knew about his case from the very beginning and it was for him and the other defendants to prove their case by producing the revenue record, which he failed to produce and now by way of additional evidence he cannot be allowed to fill up the lacuna in his case. Moreover, according to the petitioner himself, some revenue record is already produced on the case file. If that is so, it will be of no use to Civil Revision No.4782 of 2010(O & M) 4 produce on record more evidence of the same nature as it is well established that it is the quality of evidence and not the quantity of evidence which is relevant. Not only this, petitioner was also granted an opportunity to lead additional evidence when the case was pending before the trial Court. However, at that time also, petitioner failed to tender the document. Keeping in view the aforesaid facts, it cannot be held that petitioner could not produce the evidence earlier despite due diligence. In this view of the matter, I find no reason to invoke my jurisdiction under Article 227 of the Constitution of India which is limited to the extent of correcting the error of jurisdiction. Dismissed. (RAKESH KUMAR GARG) JUDGE

03.08.2010