Judgment:
Nirmaljit Kaur, J.
1. This is an appeal against the order dated 04.08.2007 passed by the Additional District Judge, Kaithal, allowing the application under Order 41 Rule 19 and Order 9 Rule 9 CPC for re-admission of the appeal, which was dismissed in default on 21.09.2001 by the Additional District Judge, Kaithal and remanding the case back to the Additional Civil Judge, Guhla, for deciding afresh after leading additional evidence by the applicants.
2. Plaintiff Mansa Singh (appellant herein) approached the revenue authorities for sanction of mutation on the basis of exchange decree, which he claimed to have entered into with defendant No. 2, Pritam Singh. However, the same could not be sanctioned in view of one sale deed dated 30.05.1964 with respect to part of disputed land, registered in favour of Banta Singh, defendant No. 1. Mansa Singh filed a suit for declaration to the effect that he is owner of the suit land. The suit was decreed in favour of the plaintiff vide judgement dated 05.05.1999 passed by the Additional Civil Judge (Sr. Division) Guhla.
3. The respondents filed appeal against the aforesaid judgement, which was dismissed in default, vide order dated 21.09.2001 passed by the Additional District Judge, Kaithal. Thereafter, in order to set aside the aforesaid order dated 21.09.2001, an application under Order 41 Rule 19 and Order 9 Rule 9 CPC for re-admission of the appeal by the respondents-legal representatives of Banta Singh was moved. The grounds so raised in the application were as follows:
1. That said Banta Singh, defendant No. 1, died on 05.02.2001 at Village Kakrala, Tehsil Guhla. He died of menagatics.
2. That said Banta Singh, defendant No. 1, never disclosed about the said litigation to the applicants or any of his other heirs. So, the heirs of said Banta Singh, including the applicant (legal representatives of Banta Singh) never knew about the case CA No. 63 of 1999 was dismissed on 21.09.2001, so they could not contact the Advocate of Banta Singh to peruse the Civil Appeal No. 63 of 1999 filed by Banta Singh on 16.07.1999 and consequently, the applicant or the other heirs of Banta Singh could not peruse the said appeal and could not got themselves impleaded as his L.Rs.
4. The application seeking permission to lead additional evidence was also moved by the legal representatives of Banta Singh, the following grounds were taken by the applicants:
1. That appellant deceased Banta Singh could not lead evidence in the lower court because his son was a soldier in Indian Army and was posted in Jammu and Kashmir and he received bullet injuries while safeguarding the Boarder of Nation and was present in the Hospital because his son was in Hospital as detailed in application for condonation of delay of limitation.
3. That the applicant need to prove the sale deed dated 30.05.1964 which was challenged by the plaintiff in the learned lower Court by proving the certified copy which was executed by himself by producing Shri Rajinder Kalra Advocate so as to prove the writing of the Deed Writer, Attesting Witness of the sale deed, including Shri Khem Chan, Clerk of the Sub Registrar, Revenue record including the mutation and jamabandies.
5. It was in the above facts and circumstances of the case as detailed in two the applications that the order dated 04.08.2007 was passed by the Additional District Judge, Kaithal, allowing the application for leading additional evidence as well as remanding the matter back to the Court of Additional Civil Judge (Sr. Division), Guhla for deciding the same afresh, after leading additional evidence. The facts mentioned in the application are self speaking. These facts have not been denied. Banta Singh could not lead evidence, as he had gone to see his son, who had received bullet injuries while posted in Jammu and Kashmir. Thereafter, he himself died. The sale deed dated 30.05.1994 goes to the root of the case. The same was required to be proved.
6. However, the same could not be proved in view of the above facts. Moreover, the documents sought to be produced are necessary for adjudication of the dispute and shall effect the decision.
7. The argument so raised by the learned Counsel for the appellant that the appeal should not have been restored and the respondents should not have been allowed to lead evidence, inasmuch as, the same would only allow the respondents to fill the lacuna, does not help in the facts of the present case as narrated above, as also in view of the decision rendered by the Apex Court in the case of 'North Eastern Railway Administration, Gorakhpur v. Bhagwan Dass (D) by Lrs : A.I.R. 2008 S.C. 2139 : (2008)8 S.C.C. 511, wherein, it was held that permission to lead additional evidence at second appellate stage, should be granted to produce the documents, if these are likely to widely affect the decision of the case in one way or the other.
8. In view of the above, I find no ground to interfere in the order dated 04.08.2007 passed by the Additional District Judge, Kaithal. The appeal is accordingly dismissed being devoid of merits. The parties, through their counsel, are directed to appear before the learned trial court on 22.09.2009, for further proceedings, in accordance with law.