MANJINDER SINGH Vs. JATINDER SINGH

JUDGEMENT

(1.) The revision petition is against the order passed by the Appellate Court. While disposing of an application under Order 41 Rule 27 CPC, it has directed for the additional evidence to be given and since it was of the view that there had been a wrong issue framed by the trial Court, it has directed the parties for staying focussed to what was relevant, directed evidence to be taken and submit the report afresh to the Appellate Court.

(2.) The plaintiff is aggrieved against this order on a plea that the parties knew what they were contending for. Although the Court framed an issue of whether the plaintiff was correct in contending that the Will was forged instead of framing the correct issue of whether the Will as propounded by the defendant was genuine, the parties knew that the defendant alone had to prove the genuineness of the Will. The defendant failed to avail to himself the opportunity of producing evidence in that he had stated even in the written statement that Section 71 of the Evidence Act made possible proof of Will if witnesses could not be produced and he was literally giving out as explanation as to why he could not bring any witnesses. If the defendant did not tender any evidence regarding the genuineness of the Will, he cannot be favoured with yet another opportunity to collect that evidence through the trial Court by directions from the Appellate Court. The other objection raised by the counsel is that the Court cannot direct additional issue to be framed and evidence to be collected without actually setting aside the finding already rendered by the Court below holding that the Will propounded by the defendant was not true and the plaintiff had established that it was not true. The finding called for by the Appellate Court without setting aside the decision already made is improper. The third objection taken by the counsel is that the Court could not have disposed of application under Order 41 Rule 27 CPC by treating it independently of the appeal itself. Such a procedure is incorrect.

(3.) I will have no difficulty in acceding to the propositions made by the counsel. It will be wrong procedure for the Appellate Court to direct arguments to be made from the counsel on the application for reception of additional evidence without actually taking up the appeal itself. In this case, the situation is however different. There is nothing for me to see from the file that the Court was hearing the application independently of the appeal itself. There had been an application for additional evidence under Order 41 Rule 27 CPC which could have been heard under normal circumstances only along with the appeal. The appeal was with reference to a decree that had been granted to the plaintiff making assertion to a share to the property that belonged to the estate of the father. Admittedly, the defendant-appellant was the other half sharer but for the Will. However, he was contending for a position that the father had executed a Will in his favour bequeathing whole of the property to him and consequently, the plaintiff was not entitled to any share in the property. The defendant in his written statement had also set out the fact that there had been proceedings before the revenue officials for mutation of entries after the death of the father and the Will had been referred to even before the revenue authorities. It has also been contended that there is no requirement of having to examine an attestor by making a reference to Section 71 of the Indian Evidence Act that sets out an exception when procedure under Section 68 of the Indian Evidence Act cannot be followed.