V.V.L. Narasu vs V. Sreerama Murthy

D.H. Nasir, J.—In this Revision Petition, the controversy is confined to production of a Will claimed to have been executed on 22-2-1963. On an earlier occasion, by an order passed on 5-8-1993 in C.R.P.No. 3515/91, the learned single Judge of this High Court held that the trial Court was justified in rejecting the Will dated 22-2-1963 after observing that the appellate Court directed the trial Court to submit a finding with regard to the Will dated 30-7-1979 regarding its genuineness.

In the impugned order in I.A. No. 15 of 1995 in A.S. No. 115 of 1985 dated 8-3-1995, the learned I Addl. District Judge, Krishna, at Machilipatnam, observed that the exclusive title and possession claimed by the original plaintiff could be properly appreciated in the light of the Will dated 22-2-1963, the mention of which found place in the written statement and evidence of the defendant and, therefore, in the interests of justice, its acceptance in evidence for the purpose of appreciation was necessary and allowed the Will dated 22-2-1963 to be produced in evidence, against which the present Revision Petition has been filed. The main grounds taken by the petitioner for challenging the legality of the appellate Court''s order are as follows:-

That the lower Court failed to see that the subject matter of I.A. No. 15/95 and 52/95 filed by the respondent under Order 41 Rule 27 and Section 151 of CPC to receive the Will dated 22-2-1963 as additional evidence was already covered by the order dated 5-8-1993 of the High Court in C.R.P. No. 3515 of 1991, which operated as res judicata precluding the subsequent application on the same question to be taken into consideration; and that the order passed by the appellate Court was in excess of the jurisdiction vested in him.

The appellate Court in its impugned order mainly took into consideration the fact that a mention with regard to the Will dated 22-2-1963 had already been made in the written statement. The lower appellate Court was also motivated by the fact that the reason for not filing the said Will during trial was to the effect that the same could not be traced. The lower appellate Court further took into consideration the fact that the controversy in the suit related to the exclusive rights claimed by the plaintiff for declaration of her title and restoration of possession. The said plaintiff died during the pendency of the appeal and the Will which was alleged to have been executed by the said plaintiff in favour of the respondent was pressed into service after adding the plaintiff''s legal representatives and the matter was remanded to the lower Court for adjudication of the said Will and that during the said remission, the lower Court even though said to have received the said Will which was not sought for its admission, rejected it later and refused to take it into consideration under the impression that it was beyond the scope of enquiry for which the matter was remanded to it.

The present respondent (V. Sreerama Murthy) who was the petitioner in I.A.No. 15/95 in A.S. No. 115/85 stated in his affidavit that the petitioner in spite of being aware of the existence of the Will in question did not choose to file the same in the Court during the trial and the document which is now sought to be produced was not a genuine document; if it was so according to V. Sreerama Murthy, it could have been filed even at the time of the trial of the suit. However, the respondent could not do so obviously because it was not in existence at that time.

From the scrutiny of the facts as arrayed before the Court, I feel inclined to agree with the submission made before me that the bar of res judicata could not be attributed to the production of the said Will merely because reference to the Will dated 22-2-1963 in the order passed by the High Court in C.R.P. No. 3515 of 1991 was made. Reference to the Will in question was mentioned in the written statement and an affidavit was filed to the effect that the same could not be produced at the trial of the suit precisely because of its non- availability at the point of time and the same should have been treated as a good ground for allowing the respondent to produce the same even at this late stage in the interest of justice. The rights claimed by the rival parties in a suit should be decided on merits rather than leaving the same to be defeated merely on technical grounds like the one with which we are confronted with in this Revision Petition. I would not have desisted from denying the right of the petitioner to produce the Will in question and letting it be tested on the anvil of proof before the trial Court on the ground of the bar of res judicata but for the fact that it was pleaded at the very first instance and did not appear like having been invented during the pendency of the suit. If the production is allowed at best it may brook a further delay. The same however could be compensated by imposing heavy costs on the person who sought production of the same at this belated stage. But in spite of all that, the bar of res judicata which has achieved the status of finality forbids the petitioner from taking advantage of the principle of substantive justice to prevail over the technical lapses and loopholes. The question before me is not whether in CRP. No. 3515/91 the High Court merely made a reference to the Will dated 22-2-1963. The High Court gave specific direction in the following words:

"The order did not refer to the Will dated 22-2-1963 which was not before the Appellate Court or before the trial Court before the disposal of the suit. Under the said circumstances the trial Court was perfectly justified in rejecting the Will dated 22-2-1963 and in relying on the application filed by the respondents."

Obviously, therefore, since the claim is clearly barred by the principle of res judicata, the Civil Revision Petition appears to be making out a good case in favour of the petitioner.

The Supreme Court while dealing with the test for admitting an additional evidence in Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 held that the legitimate occasion for the application of Order 41 Rule 27 was when, on examining the evidence as it stood, some inherent lacuna or defect became apparent, not where a discovery was made, outside the Court, of fresh evidence and the application was made to import it. The true test, therefore, was whether the appellate Court was able to pronounce judgment on the materials before it would take into consideration the additional evidence sought to be adduced.

In the case before us, in view of the fact that two conflicting Wills have been urged into service, the rival claims arising from the conflicting Wills cannot be adjudicated by the appellate Court without taking into consideration the Will dated 22-2-1963.

In a subsequent decision in Chinnammal (Died) and Another Vs. Kannagi and Others, it was held that a document purporting to be a copy of the notice issued by the plaintiff through an Advocate on 4-7-1973 to the 1st defendant and four others had been produced by way of additional evidence. However, the High Court observed that there was nothing on the face of the record to show that it was an office copy. It was written in ink and it was not a Carbon copy. There was no explanation as to why the document was not produced in the trial Court. It was stated in the affidavit filed in support of the application that while getting ready for final disposal, the appellant''s Counsel ''unearthed'' a copy of the notice. The Madras High Court further observed that the word ''unearthed'' seemed to have been appropriately used though unintentionally. No details had been given from where the document was found and in whose custody it was. The requirements of Order 41 Rule 27 of CPC were not in any way satisfied and the Madras High Court dismissed the petition.

However, in the case before us, the unearthing of the Will dated 22-2-1963 could not be treated as an appropriate slur on the admissibility of the Will mainly because it had been clearly pleaded at the first instance in the trial Court''s proceedings. It is true, however, that the petitioner has not come forward with any definite proposition as to when and how the said Will was found. All the same, the latent meaning of the term "unearthed" cannot be directly applied to the facts of the case before us.

In Parbati Vs. Duryodhan Samantaray, while interpreting Clause (A) (aa) of sub- rule (1) of Rule 27 of Order 41 of C.P.C. the Orissa High Court held that:-

"As the language of the Clause (aa) shows, appellant was required to establish that after exercise of due diligence, he could not produce those documents at the time the degree appealed against him was passed. Mere assertion in an application has not the effect of establishing a fact. Certified copies of documents before various authorities were sought to be adduced as additional evidence. Therefore, appellant was required to establish that he made applications for certified copies prior to the disposal of the suit, he sought for adjournment of the hearing of the suit since the documents were not available or he called for those documents through the process of the Court and the Court either refused adjournment to give opportunity to the appellant to produce the same or refused to call the same. Unless these facts are established, inference of due diligence cannot be drawn. Appellate Court, not having taken into consideration these relevant questions and having relied upon the assertion of the appellant only, has exercised jurisdiction with material irregularity and as such, the order is liable to be set aside."

In is true that in the instant case, no sufficient material has come on record of the Court to derive satisfaction whether due diligence was exercised by the party seeking to produce the document and in fact it is not the case of the petitioner before this Court that the document in question was not within his notice or could not after the exercise of due diligence be produced by him at the trial. Strictly speaking, therefore, the present petitioner cannot be allowed to produce the Will dated 22-2-1963 on the basis of the ratio laid down by the Orissa High Court in the above case. The document concerned in our case is a Will which would still be required to be proved before the contents thereof could be taken into consideration. The objection to the production of the said Will is taken merely on a technical ground in the light of the provisions of Order 41 Rule 27 CPC and not on the allegation that the Will was fabricated or concocted document. Since one Will dated 30-7-1979 has already come on record, if an effort is made to point out that another Will earlier executed was already in existence, gross injustice is likely to be caused if the party who seeks to produce the Will is precluded from producing the same.

In Gurudev Singh v. Mehnga Ram 1997 (5) ALD 5 : 1997 (4) ALT 31 the Supreme Court was confronted with a situation in which the appellants in an appeal before the District Court made an application under Order 41 Rule 27 (b) of CPC and the learned District Judge at the final hearing of the appeal felt that additional evidence was required to be produced as required by the appellants by way of examination of a handwriting expert. The High Court in the impugned order exercising the jurisdiction u/s 115 CPC took the view that the order of the Appellate Court could not be sustained. The approach of the High Court in revision at the interim stage when the appeal was pending for final hearing before the learned Addl. District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate Court having regard to the fact that the appellate Court hearing the matter finally could exercise jurisdiction one way or the other under Order 41 Rule 27 CPC specially Clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in Second Appeal after an appellate decree is passed. But at the interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction.

Taking cue from the above decision of the Supreme Court, there could be no hesitation that the facts of the case before this Court do attract the applicability of the aforesaid decision of the Supreme Court but for the fact that the learned Single Judge of this High Court has already decided this question and refused to allow production which has not been challenged in a higher forum, and therefore, it is difficult to come out of that deadlock.

In the above view of the matter, I feel constrained to disallow this Civil Revision Petition and to refrain from disturbing the impugned order of the lower Appellate Court in I.A. No. 15 of 1995 in A.S. No. 115 of 1985 dated 8-3-1995 on the file of the I Additional District Judge, Krishna, Machilipatnam. In the ultimate analysis therefore, the Civil Revision Petition is dismissed. No costs.