Case Note & Summary
The appellants, plaintiffs in Original Suit No. 107/2010 pending before the Civil Judge (J.D.) Saidpur, Gazipur, filed the suit for cancellation of a registered adoption deed executed by late Sudama Singh in favor of defendant No.1 and for consequential injunction. The adoption deed mentioned that the adoption ceremony took place on 14.11.2001. The plaintiffs alleged that the adoption was false and not performed with necessary formalities. After evidence was closed and the matter was listed for final arguments, the plaintiffs filed Application No. 97-C to summon the leave/service records of defendant No.2 (Ramesh Chander Singh, father of first defendant) from Rajput Regiment Centre Fatehgarh, claiming that defendant No.2 was on duty on 14.11.2001 and thus could not have been present at the ceremony. The Trial Court dismissed the application on the ground that there was no pleading in the plaint regarding the absence of defendant No.2 on that date and that the application was filed at a belated stage. The plaintiffs then filed a similar application, Application No. 109-C, which was also dismissed. The plaintiffs challenged these orders by way of revisions before the District Judge, Gazipur, which were dismissed. Aggrieved, they filed writ petitions before the High Court of Allahabad, which were also dismissed. The Supreme Court, after hearing both sides, upheld the concurrent findings. The Court noted that the adoption ceremony date was mentioned in the adoption deed itself, which was within the plaintiffs' knowledge at the time of filing the suit. In the absence of any pleading in the plaint regarding the absence of defendant No.2, the application to summon records could not be allowed, as it is well settled that in absence of pleading, any amount of evidence will not help the party. The Court also observed that the applications were filed belatedly after evidence was closed, and there was an order from the High Court for expeditious disposal of the suit, indicating that the plaintiffs were trying to protract the litigation. The Court further noted that after dismissal of the first application, the plaintiffs had filed an application for amendment of the plaint (Application No. 103-A), which was also dismissed and had become final. The second application for the same relief was also rightly rejected. The Supreme Court dismissed the appeals with no order as to costs.
Headnote
A) Civil Procedure - Summoning of Documents - Absence of Pleading - Application to summon records cannot be allowed when there is no pleading in the plaint regarding the fact sought to be proved - The plaintiffs filed applications to summon leave records of defendant No.2 to show his absence on the date of adoption ceremony, but no such pleading existed in the plaint - Held that in absence of pleading, any amount of evidence will not help the party (Paras 7-9). B) Civil Procedure - Belated Application - After Evidence Closed - Application filed after closure of evidence and at the stage of final arguments is belated and liable to be dismissed - The suit was pending for expeditious disposal as per High Court order, and the applications were filed only to protract litigation - Held that such belated applications are rightly rejected (Paras 7-9). C) Civil Procedure - Res Judicata/Constructive Res Judicata - Repeated Applications for Same Relief - After dismissal of first application (97-C), filing a second application (109-C) for the same relief is not maintainable - The second application was also rightly rejected by the Trial Court (Para 8).
Issue of Consideration
Whether the Trial Court was justified in dismissing the applications filed by the plaintiffs to summon the leave/service records of defendant No.2 from Rajput Regiment Centre Fatehgarh, when there was no pleading in the plaint regarding the absence of defendant No.2 on the date of adoption ceremony and the applications were filed at a belated stage after evidence was closed.
Final Decision
The Supreme Court dismissed the appeals with no order as to costs, upholding the orders of the Trial Court, Revisional Court, and High Court rejecting the applications to summon records.
Law Points
- absence of pleading
- any amount of evidence will not help the party
- belated application after evidence closed
- no reason to summon records without pleading
- application for same relief cannot be filed repeatedly
