MOTHA Vs. HARPAL SINGH

JUDGEMENT

(1.) S. N. Srivastava, J. Subject-matter of impugnment in the instant petition is the order dated 26th February, 2004 passed by Lower Appellate Court whereby application for filing additional evidence in Civil Appeal No. 82 of 1999, Smt. Motha v. Harpal Singh & Ors. , was rejected premised on the ground that mere default on the part of the lawyer cannot be treated as sufficient cause.

(2.) A brief resume of necessary facts is that plaintiff Smt. Motha happens to be widow of deceased Leela who in turn was full blooded brother of Govind Singh alias Ghosi. In the aftermath of death of Leela, plaintiff became co-bhumidar to the extent of one-half share in Gata No. 48 admeasuring 14 Bigha, 15 Biswa and 5 Biswansi situated in village Utwara Pargana Tappal Tahsil Kher District Aligarh and Gata No. 51 admeasuring 5. 68 acre situated in village Khajpur Tahsil Maant District Mathura. Out of the said property the remainder half share belonged to the father of the defendants. The plaintiff instituted suit for cancellation of sale-deed dated 14-10-1987 purported to have been executed by the plaintiff in favour of defendants 1 to 5 registered in the office of Sub-Registrar Kher Aligarh on the ground that she never executed any sale-deed in favour of defendants; that she is a co-tenure-holder and in actual possession and she still enjoys the same; that she came to know on 16-11-1987 that any sale-deed has been executed purported to have been executed by the plaintiff on 12-10-1987; that she is an illiterate and unsophisticated village lady and she never executed any sale-deed; that initially she filed a criminal complaint which culminated in being dismissed by Judicial Magistrate on the ground that the matter has the complexion of being of civil nature and that in mutation also she contested the case; that on the advice of the Counsel, thereafter, the plaintiff filed a suit that fraud was committed inasmuch as the defendants set up someone to impersonate her at the time of execution of sale-deed; that though she is illiterate lady she never puts her thumb-impression; that the land in dispute is the only source of livelihood for her and for her family and she has no other source to fall back upon; that she was not paid either Rs. 40,000/- or Rs. 60,000/- as alleged that there was no independent witness and further that the scribe and witnesses testifying to sale-deed are the own men of defendant No. 1; that in mutation proceeding it was established that sale-deed did not bear any thumb-impression and mutation of defendants was rejected and thereafter the defendants filed an appeal in superior Revenue Courts.

(3.) THE learned Counsel for the petitioner canvassed that the grounds set out in the application filed with accompanying affidavit constitutes a ground under Order XLI Rule 27 of the C. P. C. and this evidence was apt to be admitted on record particular regard being had to the fact that the lady was an illiterate and unsophisticated village lady who had no knowledge or clue about legal technicalities and was fully dependent upon her lawyer that she had already made an application to bring on record the hand- writing Expert report in trial Court but the same was not filed though received by Counsel and by this reckoning, she was a victim of fraud committed on her by her Counsel. Per contra, Sri M. K. Gupta, learned Counsel for the opposite parties contended that ground urged is no ground for admitting expert evidence as additional evidence on record under Order XLI, Rule 27 C. P. C. inasmuch as the fault if any on the part of the Counsel does not fall within the parameters of grounds contemplated under Order XLI Rule 27 C. P. C. He further contended that the Counsel engaged by the petitioner at the trial Court was a lawyer of considerable renown and the allegations made against the said lawyer are not substantiated from the record. THE learned Counsel placed reliance on Mahavir & Ors. v. Naresh Chandra & Anr. , 2001 (1) JCLR 463 (SC) : 2001 (1) ARC 154 and Gurdev Singh & Ors. v. Mehnga Ram & Anr. , 1997 (2) JCLR 670 (SC) : 1997 SC & (FB) Rent Cases 370, to reinforce his contentions aforesaid. In rejoinder, learned Counsel for the petitioner again canvassed that the case laws cited by learned Counsel for the Opp. parties have no application to the facts of the present case further urging that this a clear case where fraud has been committed on illiterate and rustic village lady. He also canvassed that the affidavit filed by her in support of the application remained uncontroverted and only objection was filed and allegations have not been denied except raising technical objection to the extent that in case any fraud was committed by the Counsel she was required to prove before the Court as to what steps she has taken against the Counsel and secondly that the application was designed to remove lacunae in the case. However, the fact remains that factual aspects have not been specifically denied.