Summoning the service records to show that at the time of execution of a document, the person was on duty - not maintainable at the fag end despite of directions to dispose of the case. in the absence of pleadings to that effect.
The suit in Original Suit No. 107/2010 is filed for cancellation of registered adoption deed and for consequential injunction orders. In the adoption deed itself, the ceremony which had taken place on 14.11.2001 was mentioned, hence it was within the knowledge of the appellantsplaintiffs even on the date of filing of the suit. In the absence of any pleading in the suit filed by the appellants, at belated stage, after evidence is closed, the appellants have filed the application to summon the record relating to leave/service of Ramesh Chander Singh on 14.11.2001 from the Rajput Regiment Centre Fatehgarh. It is fairly well settled that in absence of pleading, any amount of evidence will not help the party. When the adoption ceremony, which had taken place on 14.11.2001, is mentioned in the registered adoption deed, which was questioned in the suit, there is absolutely no reason for not raising specific plea in the suit and to file application at belated stage to summon the record to prove that the second respondent- Ramesh Chander Singh was on duty 5 C.A.Nos.4883-4884 of 2017 as on 14.11.2001. There was an order from the High Court for expeditious disposal of the suit and the application which was filed belatedly is rightly dismissed by the Trial Court and confirmed by the Revisional Court and High Court. It is also pertinent to mention, subsequent to dismissal of the application in Application No. 97-C, for summoning the leave/service record of defendant No.2, from his place of working that is Rajput Regiment Centre Fatehgarh, by the Trial Court on the ground that there was no such pleading in the suit, the appellants herein have filed application for amendment of the plaint in an Application No. 103-A, which was dismissed by the Trial Court and said order was confirmed by the District Judge, Gazipur in Civil Revision No. 58 of 2013 by order dated 03.05.2013. The said order has become final.
C.A.Nos.4883-4884 of 2017
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4883-4884 OF 2017
Biraji @ Brijraji & Anr. ...Appellant(s)
vs
Surya Pratap & Ors. ...Respondent(s)
J U D G M E N T
R.SUBHASH REDDY,J.
1. These civil appeals are filed, by the plaintiffs
in the Original Suit No. 107/2010, pending on the
file of Civil Judge (J.D.) Saidpur, Gazipur,
aggrieved by the order dated 12.07.2013, passed in
Writ Petition (Civil) Nos. 37415/2013 and 37416 of
2013.
2. The writ petition in W.P.(C) No. 37415/2013,
filed before High Court of Judicature at Allahabad,
was directed against the order dated 22.02.2013,
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C.A.Nos.4883-4884 of 2017
passed by the Trial Court on an Application No. 97-C
in O.S. No. 107/2010 and the order of the Revisional
Court dated 02.07.2013, passed in Revision No.
85/2013, passed by the District Judge, Gazipur. W.P.
(C) No. 37416/2013 was filed against the order dated
10.05.2013, in the same suit, passed on Application
No. 109-C, as confirmed by the Revisional Court in
Civil Revision No.82/2013 vide order dated
02.07.2013.
3. The appellants herein are plaintiffs in the suit
in O.S. No. 107/2010, filed on the file of Civil
Judge (J.D.) Saidpur. In the said suit, the
appellants have questioned the adoption deed,
executed by late Sudama Singh, who was father of the
first plaintiff executed in favor of defendant no.1
registered before Sub-Registrar, Jakhaniya, District
Gazipur. Further, consequential injunction orders are
sought to restrain the defendant herein from
interfering in the peaceful possession of the
appellants-plaintiffs with the property as mentioned
in the plaint. It is an undisputed fact that the
evidence is closed and the matter was coming up for
arguments in the above said suit and when the matter
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C.A.Nos.4883-4884 of 2017
was listed for final arguments, at that stage, the
appellants have filed an Application No. 97-C, to
summon the record, regarding the leaves of Ramesh
Chander Singh from Rajput Regiment Centre Fatehgarh.
The said Ramesh Chander Singh is the father of first
respondent, who is arrayed as second defendant in the
suit. Third defendant is the mother of first
defendant, who claims he is the adopted son of late
Sudama Singh. It is the case of the plaintiff that
there was no adoption by following the necessary
formalities and the claim of adoption is false and
incorrect. In the suit filed, they have questioned
the registered adoption deed, registered before the
Sub-Registrar. On the ground that the second
respondent- Ramesh Chander Singh was not present
during the adoption ceremony and he was on duty on
the date of alleged adoption ceremony, the aforesaid
application was filed in Application No.97-C for
summoning the 2001 leave records of defendant No.2
Ramesh Chander Singh from Rajput Regiment Centre
Fatehgarh. The said application was opposed by filing
objections by the respondents. The Trial Court,
mainly on the ground that there was no such pleading
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in the plaint and also on the ground that such
application was filed at the belated stage, dismissed
the said application by order dated 22.02.2013.
4. Almost with similar prayer, as sought in
Application No. 97-C, another application was filed
in Application No.109-C and the said application is
also dismissed by the Trial Court vide order dated
10.05.2013.
5. Questioning the aforesaid two orders that is the
order dated 22.02.2013, passed in Application No.
97-C and a subsequent order dated 10.05.2013, passed
in Application No. 109-C, the plaintiffs have carried
the matter by way of revision petitions before the
District Court, which are ended in dismissal and
aggrieved by the same, the petitioners have filed
writ petitions before the High Court in W.P.(C) Nos.
37415/2013 and 37416/2013, which are dismissed by
separate orders, vide orders dated 12.07.2013.
6. We have heard Sri S.D. Singh, learned counsel
appearing for the appellants and Sri Santosh Kumar
Tripathi, learned counsel appearing for the
respondents.
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C.A.Nos.4883-4884 of 2017
7. Having heard the learned counsels on both sides,
we have perused the impugned orders and other
material placed on record. The suit in Original Suit
No. 107/2010 is filed for cancellation of registered
adoption deed and for consequential injunction
orders. In the adoption deed itself, the ceremony
which had taken place on 14.11.2001 was mentioned,
hence it was within the knowledge of the appellantsplaintiffs even on the date of filing of the suit. In
the absence of any pleading in the suit filed by the
appellants, at belated stage, after evidence is
closed, the appellants have filed the application to
summon the record relating to leave/service of Ramesh
Chander Singh on 14.11.2001 from the Rajput Regiment
Centre Fatehgarh. It is fairly well settled that in
absence of pleading, any amount of evidence will not
help the party. When the adoption ceremony, which had
taken place on 14.11.2001, is mentioned in the
registered adoption deed, which was questioned in the
suit, there is absolutely no reason for not raising
specific plea in the suit and to file application at
belated stage to summon the record to prove that the
second respondent- Ramesh Chander Singh was on duty
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C.A.Nos.4883-4884 of 2017
as on 14.11.2001. There was an order from the High
Court for expeditious disposal of the suit and the
application which was filed belatedly is rightly
dismissed by the Trial Court and confirmed by the
Revisional Court and High Court. It is also pertinent
to mention, subsequent to dismissal of the
application in Application No. 97-C, for summoning
the leave/service record of defendant No.2, from his
place of working that is Rajput Regiment Centre
Fatehgarh, by the Trial Court on the ground that
there was no such pleading in the suit, the
appellants herein have filed application for
amendment of the plaint in an Application No. 103-A,
which was dismissed by the Trial Court and said order
was confirmed by the District Judge, Gazipur in Civil
Revision No. 58 of 2013 by order dated 03.05.2013.
The said order has become final.
8. Though the first application for summoning the
record in Application No.97-C was dismissed by the
Trial Court, the appellants have filed similar
application again in Application No. 109-C for the
very same relief, which is also rightly rejected by
the Trial Court.
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C.A.Nos.4883-4884 of 2017
9. In our view the reasons recorded in the orders
passed by the Trial Court, as confirmed by the
Revisional Court and High Court are valid and are in
accordance with the settled principles of law. It is
clear from the conduct of the appellants, that in
spite of directions from the High Court, for
expeditious disposal of the suit, appellantsplaintiffs were trying to protract the litigation.
10. For the aforesaid reasons, we do not find any
merit in these appeals and the same are, accordingly,
dismissed, with no order as to costs.
……………………………………………………………………J
(ASHOK BHUSHAN)
……………………………………………………………………J
(R.SUBHASH REDDY)
……………………………………………………………………J
(M.R.SHAH)
NEW DELHI;
NOVEMBER 03, 2020
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