R.L.ANAND, J. - (1.) THIS is a Civil Revision and has been directed against the order dated 8.12.1999, passed by the Additional Civil Judge, Sr. Division, Gurdaspur, who dismissed the application of the petitioners under Order 18 Rule 17-A C.P.C.
(2.) THE petitioners are defendant No. 5 to 7 before the trial Court. S/Shri Sukhpal Singh and Major Singh are the plaintiffs and they alleged themselves to be the minor sons of Shri Devinder Singh husband of Smt. Balwindar Kaur, defendant No. 1. They filed a suit for declaration in collusion with defendant No. 1 Smt. Balwinder Kumar that the suit land was the joint Hindu family co- parcenary property. They have challenged the Will executed by their father Shri Devinder Singh in favour of Smt. Balwinder Kaur. The present petitioners are the transferees from Smt. Balwinder Kaur and the case set up by them was that Smt. Balwinder Kaur was a beneficiary under the Will dated 1.10.1990. She had colluded with the plaintiff. Therefore, Smt. Balwinder Kaur did not appear in the suit and she was proceeded ex parte. The petitioners wanted that the Will dated 1.10.1990 should be proved on the record as the original Will dated 1.10.1990 was in the power and possession of Smt. Balwinder Kaur. Further the case set up by the petitioners is that they have been able to get the photo copy of the said Will from the mutation file of the estate of Devinder Singh in village Rania, District Gurdaspur and they want to prove the said Will by adducing additional evidence. They could not prove the Will inspite of due diligence when they were leading the evidence. The onus to prove the issue was upon the plaintiffs. The execution of the Will dated 1.10.1990 is very material and, therefore, the permission should be granted to them to prove the factum of the execution of the Will executed by Shri Devinder Singh in favour of Balwinder Kaur. The prayer made by the petitioners was opposed by the plaintiffs who filed the reply. According to them the Will being relied upon by the defendants- petitioners is a fabricated document. No valid Will was ever executed by Devinder Singh. The petitioners have already moved an application to prove the alleged Will which was dismissed. The present application is not legally maintainable. The defendants have taken sufficient opportunities for producing the Will and they closed the case and now the permission cannot be granted to them to lead evidence in support of the Will dated 1.10.1990.
(3.) AFTER giving the contest before the trial Court, the learned Additional Civil Judge, Senior Division, Gurdaspur, vide impugned order dated 8.12.1999 and for the reasons given in para No. 4 of the impugned order, dismissed the application and para No. 4 of the impugned order is reproduced as under :- "4. The learned Counsel for the applicant/defendants has argued that applicant/defendants have got the photocopy of Will dated 1.10.1990 executed by father of respondent/plaintiffs in favour of defendant No. 1 and now respondent/plaintiffs have filed the present suit in collusion with defendant No. 1 to harass the applicant/defendant No. 5 to 7. The learned Counsel for the applicant/defendants has further argued that applicant/defendants could not produce the said evidence while leading their main evidence so they should be allowed to lead additional evidence by producing the secondary evidence of the alleged Will. While on the other hand, learned Counsel for the respondent/plaintiffs has vehemently opposed the contentions taken by the applicant/defendants and has argued that applicant/defendants were within the knowledge of alleged plea regarding the Will dated 1.10.1990 and applicant/defendants did not exercise due diligence of producing the said evidence on the Will dated 1.10.1990, and therefore, the present application does not come within ambit Order 18 Rule 17-A C.P.C. The learned counsel for the respondent/plaintiffs has cited a case 1998(2) RCR(Civil) 135 (P&H) : 1998(3) The Punjab Law Reporter 561, Khuda Bux v. Nafis Ahmed (Pb. and Haryana High Court) and has argued that the evidence to the produced by way of additional evidence were within the knowledge of applicant/defendants and if applicant/defendants did not exercise due diligence then the application deserves dismissal. The learned counsel for the respondent/plaintiff has further argued that applicant/defendants must satisfy the Court that they cannot produce the said evidence after due diligence exercised and applicant cannot be permitted to lead additional evidence subsequently on the facts which were already in existence and known to the party concerned. The learned counsel for the respondent/plaintiffs have further argued that onus to prove the Will was on the respondent/plaintiff and the onus was not on the applicant/defendants and respondent/plaintiff have not led their evidence on the issue regarding the alleged Will and if the respondent/plaintiff does not prove the issue, inference may be drawn against the respondent/plaintiffs regarding the issue on the alleged Will. Keeping in view the arguments advanced by both the learned counsel for the parties and from the perusal of documents and pleadings on the record, I am of the view that issue regarding the alleged Will was framed vide order dated 7.6.1996 and both the parties have led their evidence on the issue No. 2 regarding the Will dated 1.10.1990. Moreover, the onus to prove this issue is on the respondent/plaintiff and this matter has already been decided vide order dated 21.10.1990 and applicant/defendants have not been able to show that they could not produce the evidence on the Will inspite of due diligence because applicant/defendants have ample opportunity to see what evidence is to be led by them while at the stage of evidence of applicant/defendants. As the applicant/defendants have not been able to show merit in the present application, therefore, application being without merit, fails and stands dismissed. Thus, application stands disposed of. However, the decision of this application shall not effect the merit disposal of the suit." ;