Roop Ram Petitioner v. Purshotam Dass And Others S

L.N Mittal, J. (Oral)

Roop Ram plaintiff no. 3 has filed this revision petition under Article 227 of the Constitution of India impugning order dated 3.1.2013 Annexure P/4 passed by the trial court thereby dismissing application Annexure P/1 filed by the petitioner for additional evidence.

It is unfortunate litigation among the brothers who are all sons of Bhani Sahai. The present suit was initially instituted by proforma respondents no. 3 and 4 against contesting respondents 1 and 2 as contesting defendants and against Roop Ram petitioner as proforma defendant no. 3 and against proforma respondent no. 5 Net Ram as proforma defendant no. 4. In the suit, judgment and decree dated 9.1.2001 Exs. D2 and D3 passed in earlier suit instituted by respondents no. 1 and 2 against their father Bhani Sahai are under challenge. In application for additional evidence, petitioner alleged that being proforma defendant, he was earlier proceeded against ex-parte and later on, he was transposed as plaintiff no. 3. Details of averments made by respondent nos. 1 and 2 in their plaint Annexure P/3, on the basis of which judgment and decree dated 9.1.2001 under challenge in the instant suit were passed, are not contained in the aforesaid judgment and decree Exs. D2 and D3 and therefore, it is necessary to produce plaint dated 19.10.2010 Annexure P/3 by way of additional evidence.

Respondents no. 1 and 2 by filing reply Annexure P/2 opposed application Annexure P/1 and controverted the averments made therein. It was pleaded that the petitioner even after being transposed as plaintiff availed of seven opportunities for leading evidence and the instant application for additional evidence was moved at the stage of rebuttal evidence and arguments.

Learned trial court vide Annexure P/4 has dismissed application Annexure P/1 filed by plaintiff no. 3, who has, therefore, filed this revison petition to challenge the said order.

I have heard counsel for the parties and perused the case file.

Counsel for the parties reiterated their respective version as noticed hereinbefore.

I have carefully considered the matter. Respondents no. 1 and 2 themselves instituted plaint Annexure P/3 in which judgment and decree dated 9.1.2001, which are under challenge in the instant suit, were passed. Respondents no. 1 and 2 have not pleaded that they had not instituted plaint Annexure P/3 and therefore, they should have no objection to production of plaint Annexure P/3 by way of additional evidence. They shall not suffer any loss or injury by production of the said document by additional evidence which is plaint instituted by themselves. For the delay in filing the application, respondents no. 1 and 2 can be compensated by costs. Delay in filing of application was no ground for declining the same. On the other hand, production of the plaint Annexure P/3 by additional evidence is essential so as to know the nature of averments made by respondents no. 1 and 2 to secure judgment and decree dated 9.1.2001 which are under challenge in the instant suit.

Resultantly, I find that there is sufficient ground for permitting the petitioner to produce plaint Annexure P/3 by additional evidence on payment of costs. Impugned order of the trial court dismissing petitioner's application for additional evidence is illegal and suffers from jurisdictional error.

Resultantly, the instant revision petition is allowed. Impugned order Annexure P/4 passed by the trial court is set aside. Application Annexure P/1 filed by the plaintiff no. 3.petitioner for additional evidence is allowed. Petitioner is permitted to produce plaint Annexure P/3 by way of additional evidence subject to payment of Rs. 3000/- as costs precedent, payable to contesting respondents no. 1 and 2.