Sukhbir Singh vs Rajwant Kaur

Mrs. Dr. Sarojnei Saksena, J.

Petitioner has assailed the learned Additional District Judge''s order Annexure P.3 whereby he dismissed the petitioner''s petition filed under Section 311 Code of Criminal Procedure (in short, the Code).

Skeletal facts are that respondent Rajwant Kaur filed a petition under Section 125 of the Code claiming maintenance for herself as well as for her minor son respondent No. 2. Petition was contested by the petitioner. The learned Magistrate allowed the petition and granted maintenance at the rate of Rs. 400/ to Rajwant Kaur and Rs. 300/ per month to respondent No. 2 from the date of application vide his order dated 8.10.1993. Rajwant Kaur filed revision for enhancement of monthly allowance granted by the lower Court, whereas petitioner filed revision for setting aside the said order. During the pendency of the revision, petitioner filed a petition under Section 311 of the Code praying an opportunity to lead evidence to prove that Rajwant Kaur is serving in Lahari Modern High School Dhotain Tehsil Tarn Taran under the name of Paramjit Kaur and therefore, she is not entitled to claim maintenance from him. He also submitted that he has sufficient documentary evidence to prove the said fact. Hence, he sought permission.

Petition was contested by the respondents. The learned Additional District Judge dismissed the said petition holding that the documents which petitioner wants to prove are in the name of Paramjit Kaur, while the name of respondent No. 1 is Rajwant Kaur. Further these documents the petitioner could have produced before the lower Court. He also produced two photographs, but negatives were not produced. Hence, he was not allowed to lead additional evidence to prove his plea.

Learned Additional District Judge relied on Apex Court judgment in Mohan Lal Shamji Soni v. Union of India and another, 1991(3) Recent Criminal Reports 182 and held that the petitioner cannot be allowed to fill in lacuna left by him in his defence.

Petitioner''s learned counsel strongly stressed that petitioner has produced photographs which show that respondent No. 1 is receiving some prize from the village Sarpanch in the school premises and in another she is addressing school congregation. She has not denied her photographs. He also submitted that the petitioner is also possessing Video Cassette which will show that respondent No. 1 is working in Lahari Modern High School as Paramjit Kaur. If he is allowed an opportunity to adduce this evidence, it will not cause any prejudice to the respondents.

Petitioner could not satisfy the Court as to when he came to know of this documentary evidence, why this could not be produced before the trial Magistrate and if documents are in the name of Paramjit Kaur, how these documents can be related to Rajwant Kaur.

So far as photographs are concerned, the negatives were not produced and there was no affidavit filed to show as to who took the photographs and when these photographs were taken. The learned Additional District Judge has rightly dismissed the petition. No party can be allowed to fill in lacuna left by him in his case at the proper time unless he can show and satisfy the Court that despite his due diligence he could not know of these documents/evidence and therefore, this evidence could not be adduced before the trial Court. The petitioner has utterly failed to show even prima facie these facts.

Hence, in my considered view, the learned Additional District Judge has rightly passed the impugned order. No interference is called for.