Due diligence is required from a party seeking anticipated relief

Himachal Pradesh High Court: A petition filed under Article 227 of the Constitution against the order of the Additional District Judge whereby he allowed respondents’ application for adducing additional evidence, was allowed by a Single Judge Bench comprising of Tarlok Singh Chauhan, J.

The matter related to a Will and mutation of certain properties. The parties were contending a suit in regard to the same in the lower courts. In the said suit, the respondents filed an application before the Additional District Judge for adducing additional evidence under Order 41 Rule 27 CPC which was allowed. Aggrieved by the same, the petitioners preferred the instant petition.

The High Court perused the record and found that earlier the respondents had filed an application before the trial judge for producing the mutation under Order 8 Rule 1-A of CPC which was dismissed. Hence, the same applied as res judicata against the similar relief sought in subsequent application as the order of trial court was never assailed by the respondents. Further, the documents sought to be produced now were already in the knowledge of the respondents being public documents as asserted by the respondents themselves. The Court held that for seeking relief under Order 41 Rule 27, it was necessary for the party seeking such relief to have exercised due diligence in not having faulted to produce documents at an earlier stage. Duly diligent efforts are the requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. However, in the instant case, as noted above, the respondents were not diligent in producing the documents at the appropriate stage even when it could have been done. Thus, the Court found that it was not a case where benefit under Order 41 Rule 27 ought to have been granted to the respondents. Hence, the petition was allowed and the impugned order was set aside. [Rattan Chand v. Duni Chand, 2018 SCC OnLine HP 613, dated 21-5-2018]

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