Allowed

Kailash Chander and Ors. v. Sushil Kumar and Ors.

Punjab & Haryana HC2 Dec 2009CR/7122/2009

Case brief

AI extract

What is this about?

The High Court allowed a revision petition under Article 227, setting aside a Trial Court order that dismissed an application for additional evidence. The Court held that the petitioners exercised due diligence in procuring certified copies of witness statements from a 2000 suit and permitted their tender against payment of costs.

What did the court decide?

The impugned order dated 6.11.2009 set aside; petitioners allowed to tender certified copies of statements by way of additional evidence upon payment of Rs. 2,000 costs.

Kailash Chander and Ors. Vs Sushil Kumar… — Execution and Attachment | Punjab & Haryana HC (2009)

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Civil Revision No. 7122 of 2009(O&M) 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 7122 of 2009(O&M) Date of decision: 2 -12-2009

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Kailash Chander and Another

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........Petitioners

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Versus

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Sushil Kumar and others .......Respondents

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CORAM:- HON'BLE MR. JUSTICE HARBANS LAL

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Present: Shri Harsh Garg, Advocate for the petitioners

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HARBANS LAL, J.

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Kailash Chander and Kuldeep Kumar have filed this revision petition under Article 227 of the Constitution of India for setting aside the order dated 6.11.2009 Annexure P-1 passed by the learned Trial Court vide which application filed by the petitioner for additional evidence stands dismissed.

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The brief facts giving rise to this revision are that the petitioners filed a suit for possession and declaration to the effect that they are owners of shop No. 402, Chunni Chowk, Main Bazar, Safidon. The property was initially owned by Shri Jagdish Rai, who had five sons namely Mansa Ram, Suraj Bhan, Anant Ram, Om Parkash and Sunder Lal. The petitioners are successors from Sunder Lal while respondent No.1 is son of Sumer Chand son of Suraj Bhan. The property was partitioned during the life time of Jagdish Rai in the year 1928 and memorandum of partition was reduced into writing on 3.12.1930. On the basis of the said family partition, the shop in question fell to the share of petitioners' predecessor Sunder Lal.

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Civil Revision No. 7122 of 2009(O&M) 2

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This was subsequently rented out to respondents' father Sumer Chand on a monthly rent of Rs.75/-. They stopped paying the rent. In the rent petition, the question of title was raised. Since the relationship of landlord and tenant was denied, the suit for possession was filed being owner of the shop in question. The suit was contested by the respondents taking all permissible pleas. However, it was admitted that property was owned by Jagdish Rai great grand father of the parties. The respondents took up the plea of family settlement of 1928 and in the alternative the plea of adverse possession.

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The written statement was filed by the respondents on 3.2.2006. The petitioner-plaintiffs closed their evidence on 11.4.2008 and subsequently, the respondent-defendants started their evidence in the year 2009. In the meantime, the petitioners moved an application for additional evidence, in which it was prayed that the certified copy of the statements of Mithan Lal son of Anant Ram, who was one of the five sons of Jagdish Rai be permitted to be brought on record. The file from which certified copy was to be obtained was initially not available and the moment, the file was made available, the petitioners moved an application for placing on record certified copy of the statement recorded in an earlier suit. Thus, the impugned order, vide which the application has been dismissed, is liable to be set aside.

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I have heard the learned counsel for the petitioners, besides perusing the record with due care and circumspection.

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The learned counsel for the petitioners eloquently urged that the learned Trial Court while passing the impugned order has erred in law in observing that the petitioners did not place on the file the statements of the

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Civil Revision No. 7122 of 2009(O&M) 3

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witnesses made in an earlier suit. The learned Trial Court has completely overlooked the fact that the present suit was filed on 16.12.2005 and the evidence was recorded by the petitioner-plaintiffs promptly. They had immediately made an effort to get the certified copies of the statements, but the same were not made available and the application moved by them for getting the certified copies, was returned with the remarks “file is not available”. Such being the circumstances, the learned Trial Court was not justified in declining the application moved by the petitioners for leading additional evidence.

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I have given a deep and thoughtful consideration to the submissions made by the learned counsel for the petitioners.

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In nutshell, the petitioners want to produce on record the certified copy of the statement of Virender Kumar son of Sunder Lal and Mithan Lal son of Anant Ram as well as copy of statement of Narender son of Anant Ram made in case titled as Yogeshwar Dass Vs. Anil Kumar etc. decided on 9.10.2000. The reason apportioned by the learned Trial Court for declining this application is that the statements the copies of which are sought to be placed on record of the learned Trial Court were made in the year 2000. If the petitioners had exercised due diligence, the same could have been placed on record while they were leading their evidence. It is pertinent to mention here that the written statement in the case was filed by the respondents on 3.2.2006. The petitioner-plaintiffs closed their evidence on 11.4.2008. The petitioners have asserted that numerous efforts were made by them to procure certified copies of such statements but the same having not been supplied, could not be tendered in evidence when they were leading their own evidence. Thus to my mind, it cannot be imputed to the

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Civil Revision No. 7122 of 2009(O&M) 4

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petitioners that they did not exercise due diligence. The respondents can be compensated in terms of costs. The procedural prescriptions are the handmaids of justice. Their object is to advance cause of justice and not to thwart the ends of justice. The admissibility of the statements sought to be tendered in evidence is not to be gone into by this Court. Such question is to be gone into by the learned trial Court at the time of final arguments. This court is to see as to whether the petitioners can be permitted to tender the copies of these statements by way of additional evidence.

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As a sequel of the above discussion, this petition is allowed. The impugned order dated 6.11.2009 passed by learned Trial Court in Civil Suit No. 427 of 16.12.2005 titled as Kailash Chander & Others Vs. Sushil Kumar and Others, is set aside. The petitioners are allowed to tender certified copies of the said statements by way of additional evidence subject to payment of Rs.2,000/- as costs.

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(HARBANS LAL) JUDGE

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December 2, 2009 RSK

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NOTE : Whether to be referred to the Reporter or not? Yes/No

Kailash Chander and Ors. v. Sushil Kumar and Ors.

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Kailash Chander and Ors. v. Sushil Kumar and Ors.

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