SABARA Vs. AZMAT ALI AND 4 OTHERS

JUDGEMENT

(1.) The petitioner is before this Court assailing the order dated 18.7.2017 passed by the Addl. District Judge/ Special judge (E.C. Act), Banda in Civil Appeal No.65 of 2014 (Sabara v. Ajmal Ali & Ors.) by which the application filed by the applicant-petitioner under Order 41 Rule 27 CPC for bringing on record additional evidence has been rejected.

(2.) This much is reflected from the record that one late Sajida Bano D/o Zaheer was teacher in Nagar Shiksha Vibhag and had expired on 1.4.2007 during service period. An amount of Rs.5 lacs (approx.) was to be paid by the department as dues against the provident fund and insurance etc." It is contended that deceased Sajida Bano during her life time has executed a will deed dated 21.7.2004 of her all movable and immovable property in favour of applicant-petitioner being pleased due to all love and affection with the applicant, and as such the applicant is entitled to receive her service dues. "

(3.) The respondent no.1-Azmat Ali claiming himself as husband of late Sajida Bano also made a claim for payment of her service dues." For succession certificate he filed Misc. Case No.156/70/2010 under Section 372 of Indian Succession Act claiming himself to be her husband on the basis of Nikahnama dated 25.2.1978. The petitioner has filed her objection/ written statement in the said case denying the alleged marriage and Nikahnama dated 25.2.1978." The respondent nos.2 to 5 also made separate objection and claimed for payment of the amount due." The court below vide order dated 22.4.2014 had allowed the claim of respondent no.1 and issued succession certificate and directed the payment of Rs.5 lacs with interest by succession certificate in his favour." Aggrieved with the same the petitioner filed Civil appeal No.65 of 2014 challenging the order dated 22.4.2014." Meanwhile the petitioner obtained the certified copy of the service book of the deceased Sajida Bano through Right to Information Act, 2006 on 22.10.2016 in which the name of Azmat Ali was not recorded as husband nor she was shown as married woman." The applicant at once moved an application under Order 41 Rule 27 for bringing on record the service book as an additional evidence vide application dated 7.12.2016." The respondent no.1 filed objection against the aforesaid application. Thereafter, vide impugned order dated 18.7.2017 the aforesaid application of the petitioner for bringing on record the additional evidence was rejected on the ground that there is already an averment made in para 8 (7) of the written statement that in the service book the name of husband has not been mentioned and if it was so, she would have filed the documentary proof at that stage to prove the same and as such at the stage of appeal the additional evidence could not be permitted."