Shri Jatinder Singh Bhatia vs State And Others
2008 Latest Caselaw 1424 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+        IAs.No. 4494/2005, 10455/07, 10472/2007 &
         10850/2007 in TEST CAS 37/1995




%                                               Date of decision : 22.08.2008


SHRI JATINDER SINGH BHATIA                   .......Petitioner
                 Through: Mr S.P. Aggarwal, Sr Advocate with
                          Ms Meenu Aggarwal, Advocate.

                                                     Versus

STATE AND OTHERS                                                           ....... Respondent

                                      Through:            Mr Sandeep Sethi, Sr Advocate with
                                                          Mr Sandeep Sharma, Advocate



CORAM :-
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


     1. Whether reporters of Local papers may
        be allowed to see the judgment?                                               YES

     2. To be referred to the reporter or not?                                        YES

     3. Whether the judgment should be reported                                       YES
        in the Digest?


RAJIV SAHAI ENDLAW, J

1. The petitioner seeks probate of the registered Will dated 15th

May, 1994 of his father Shri Joginder Singh Bhatia. Under the said Will

the petitioner is the only beneficiary. The four brothers and one sister

of the petitioner have been impleaded as the respondents/close

relatives. Objections have been filed by each of the four brothers of the

petitioner. The sister of the petitioner has filed Testamentary Case

No.42/1995 with respect to a Will dated 15th November, 1994 of the said

Shri Joginder Singh Bhatia, as executor appointed under the said Will.

2. The Will dated 15th May, 1994, subject matter of this petition,

is purported to be witnessed by Shri Ravinder Pal Singh and Shri

Yoginder Singh Bhatia. The present petition has been verified, besides

by the petitioner, by Shri Yoginder Singh Bhatia as one of the attesting

witness to the Will. The petition was also accompanied by the affidavits

of both Shri Ravinder Pal Singh and Shri Yoginder Singh Bhatia affirming

that the Will dated 15th May, 1994 was executed by Shri Joginder Singh

Bhatia in their presence and that they had also signed the said Will as

attesting witnesses in the presence of Shri Joginder Singh Bhatia and in

the presence of each other.

3. For the purposes of the disposal of these applications, it is also

necessary to state that in the objections filed by each of the brothers of

the petitioner, it is, inter alia, the case that the Will dated 15 th May,

1994 of which probate is sought by the petitioner is not the last Will of

Shri Joginder Singh Bhatia; that the Will dated 15th May. 1994 has been

revoked and cancelled by Shri Joginder Singh Bhatia by making his last

Will dated 15th November, 1994 of which probate has been sought in

Testamentary Case No.42/1995.

4. The Will dated 15th November, 1994 set up by the objectors

and subject matter of testamentary case No.42/1995, inter alia, states

as under :

"I, Joginder Singh Bhatia, s/o Shri Ladha Singh, r/o E-28, Rajouri Garden, New Delhi do hereby make this my last Will and testament on this 15th day of November, 1994, and hereby revoke all Wills and Codicils and other testamentary dispositions made by me hereto fore and specifically revoke my previous Wills dated 12.09.1980, 26.07.1987 and particularly Will dated 15.05.1994 which I executed as I had

no choice being under the influence of my youngest son Jatinder Singh and his wife Smt Satinder Kaur with whom I have been staying and declared this present Will to be my last Will. It will take effect after my death."

5. It is further the case in the objections that Shri Joginder Singh

Bhatia had been prevailed upon, under undue influence and pressure to

execute the Will dated 15th May, 1994; that the attesting witnesses to

the Will dated 15th May, 1994 were procured by the petitioner to

advance his design and were not independent witnesses and the said

witnesses did not sign at the instance of late Shri Joginder Singh Bhatia.

The respondent No.5 who has moved the applications under

adjudication has in his objections also stated that Shri Joginder Singh

Bhatia was under the influence of the petitioner and the petitioner

taking advantage of the old age of Shri Joginder Singh Bhatia got the

Will dated 15th May, 1994 executed by exercising undue influence and

pressure on him; that the petitioner took prominent part in the

execution of the Will; that Shri Joginder Singh Bhatia put his signatures

on the Will dated 15th May, 1994 not of his own free will but under the

undue influence of the petitioner; that the witnesses to the Will dated

15th May, 1994 are not independent witnesses and are very near

relation of the petitioner.

6. Notwithstanding the aforesaid state of pleadings, while

framing consolidated issues in the present case and in testamentary

case No. 42/1995 on 15th July, 1999 issue No.1 was framed as under :

"Whether the deceased had executed Will dated 15th May, 1994?"

7. The petitioner examined the attesting witness Shri Ravinder

Pal Singh as PW1 on 29th October, 2001 and the said witness was cross

examined by all the objectors. The second attesting witness Mr

Yoginder Singh Bhatia was examined as PW2 and his cross examination

was also concluded on 30th October, 2001. The petitioner examined

another witness from the office of the sub Registrar concerned where

the Will dated 15th May, 1994 was registered. The evidence of the

petitioner was closed in affirmative on 15th July, 2002 and the objectors

were ordered to file affidavits by way of examination in chief of their

witnesses. The cross examination of the witnesses of the objectors has

begun.

8. All the four applications have been filed by the respondent

No.5. IA.No.10455/2007 has been filed under Order 18 Rule 17 CPC to

re-examine PW2 Shri Yoginder Singh Bhatia. The respondent No.5 had

earlier filed IA.No.4494/2005 for the same relief and which is also

pending and which, on moving of IA.No.10455/2007, was sought to be

withdrawn. IA.No.10472/2007 has been filed under Order 16 Rule 1 CPC

to include the names of Shri Harpreet Singh Bedi and Shri Jagmohan S

Sawhney in the list of witnesses of the respondent No.5 and to examine

them as witnesses. It is, inter alia, the case of the respondent in the IAs

No 10455/2007 and 10472/2007 that Shri Harpreet Singh Bedi and Shri

Jagmohan S Sawhney were the neighbours of the respondent No.5 and

were also closely associated with the deceased Shri Joginder Singh

Bhatia; that in April, 2005 Shri Harpreet Singh Bedi and Shri Jagmohan S

Sawhney informed respondent No.5 that they had met Shri Yoginder

Singh Bhatia who was looking very depressed and upset and on

inquiring informed that he was feeling guilty of making false deposition

as attesting witness of the Will in the present case, in favour of the

petitioner herein; that he had appended his signatures to the Will as

desired by the petitioner, although there was no signatures on the

alleged Will of any other attesting witness; that upon learning so, the

respondent No.5 also met Shri Yoginder Singh Bhatia who further

informed that Shri Joginder Singh Bhatia never signed any Will dated

15th May, 1994 in his presence and that Shri Yoginder Singh Bhatia had

affixed his signatures on the alleged Will dated 15th May, 1994 at the

request of the petitioner in his own house and in the absence of Shri

Joginder Singh Bhatia and other witnesses.

9. Respondent No.5 has alongwith the applications also filed the

affidavit of Shri Yoginder Singh Bhatia in contradiction of his deposition

before the court and the affidavits of Shri Harpreet Singh Bedi and Shri

Jagmohan S Sawhney.

10. It is in the aforesaid state of affairs that the respondent No.5

wants to re-examine Shri Yoginder Singh Bhatia and to add the names

of Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney in his list of

witnesses. The petitioner has opposed the applications.

11. The IA.No.4494/2005 would not come in the way of the

respondent No.5 specially since the same till the filing of IA.No.

10455/2007 was still pending. IA.No.4495/2005 is permitted to be

dismissed as withdrawn and IA.No.10455/2007 filed for the same relief

is entitled to be considered.

12. The senior counsel for the respondent No.5 admitted that PW2

Shri Yoginder Singh Bhatia is resiling from his earlier statement but

urged that it is incumbent upon the court to record the statement which

he now wishes to give and to thereafter weigh both the statements to

determine as to on which occasion he lied. It was urged that a witness

who wants to resile from his statement given to the court cannot be

shut out. Reliance was placed on S.S.S. Durai Pandian v S.A.

Samuthira Pandian AIR 1998 Madras 323 in support of proposition

that witness can be recalled under Order 18 Rule 17 on application of

the party also and not only at the court's own instance and that the

powers thereunder are very wide.

13. The senior counsel for the petitioner on the other hand drew

attention to the order dated 7th September, 2006 in FAO(OS) 319/2005

preferred by the petitioner against the Order dated 22nd August, 2005 in

the present proceedings and also to the cross examination of Shri

Yoginder Sing Bhatia where he had stated that the objectors had

approached him; he urged that the objector cannot be permitted to so

win over the witness and to apply for their recall. It was also urged that

under Order 18 Rule 17 CPC only the court can examine the witnesses

and the parties have no power to examine or cross examine and for this

reason also no purpose will be served in recalling the PW2 Yoginder

Singh Bhatia. It was further urged that the relief claimed in IA.No.

10472/2007 was consequential to the claim in IA.No.10455/2007.

14. Order 18 Rule 17 of the CPC empowers the court to, at any

stage, recall any witness and to put such questions to him as the court

thinks fit. It is in view of this provision only that Order 18 Rule 17A of

the CPC introduced vide the amendment Act 1976 was repealed by the

Amendment Act of 1999 (Salem Advocate Bar Association v. Union

of India AIR 2003 SC 189 and AIR 2005 SC 3353). The legislature felt

that Rule 17A did not serve any purpose owing to existence of Rule 17

and in fact led to delays. The Division Bench of this court in National

Agro Chemical Industries Limited v National Research

Development Corporation 118 (2005) DLT 653 has held that repeal of

Rule 17A does not debar a party from recalling a witness.

15. Though the language of Rule 17 entitles the court only to

recall witness but it has been held in Shankara Bhat v Bheema Bhatt

AIR 1974 Kant 123 following Madhubhai Amthalal v Amthalal

Nanalal AIR 1947 Bombay 156 and Sultan Saleh v Vijaychand AIR

1966 Andhra Pradesh 295 and in S.S.S. Durai Pandian (supra), with

which judgments I respectfully concur that the litigant can ask the court

to act under the said Rule. It has further been held in the aforesaid

judgments and as is also obvious from a plain reading of Rule 17 that on

such recall, only the court is entitled to put questions to the witness and

not the parties; however the parties can suggest to the court the

questions to be so put and the court under inherent powers can also

permit the party to examine/cross examine such recalled witness. In

this regard also see Kaliaperumal Naidu v Kuppuswami Naidu 1994

(2) MLJ 148 and Altaf Hussain v Nasreen Zahra AIR 1978 All 515 and

Balkrishna Shivappa Shetty v Mahesh Nenshi Bhakta AIR 2003

Bom 293.

16 The provisions of Rule 17 have been permitted to be invoked

to allow the parties to cover mistakes / lapses. The witnesses were

permitted to be recalled for cross examination where application was

moved immediately after conclusion of cross examination, owning to

the main counsel having been not available for cross examination and

cross examination having been conducted by a junior/associate counsel

or where by mistake documents remained to be exhibited. Similarly the

courts have also held that witnesses will not be permitted to be recalled

to fill lacunas and not after the parties have availed of proper

opportunity to cross examine. The present case does not fall in the

category of the respondent No.5 seeking to invoke the provisions of

Rule 17 to cover any lapse or mistake. The respondent No. 5, after four

years of cross examining, seeks to recall the witness to examine him as

his own witness. In my opinion the same was not the purport of Order

18 Rule 17 CPC and, in any case, in the facts of the present case, the

respondent No.5 is not entitled to do so.

17. The principle of finality attaches not only to final disposal of a

lis but also to each segment of the proceedings. There is no reason not

to apply the said principles for examination of witnesses also. Once a

witness has been examined and discharged, he cannot be permitted to

be recalled on the ground that the witness has changed his statement

or has changed his mind or that he earlier did not tell the truth. Trial

often spans over months/years and if such a practice is to be allowed /

encouraged, it will lead to the parties to pursue the witness to depose in

their favour not only before their appearance in the court but even after

they have appeared and deposed. The Division Bench of this court in

Jessica Lal murder case 135 (2006) DLT 505 has already noticed the

trend of the witnesses turning hostile and held that courts must put an

end to this kind of attitude of witnesses turning hostile in order to thwart

the course of justice. In my view, we will be encouraging the trend of

witnesses turning hostile if applications such as the present one are to

be allowed.

18. Even otherwise, a litigant cannot invoke Order 18 Rule 17 CPC

or the inherent powers of court to recall a witness who had earlier

deposed against that litigant, to now depose in favour. Even under

Section 154 of the Evidence Act, the declaration of the witness as

hostile is to be done immediately at the time of examination of the

witness and cannot be permitted to be done long after the witness has

been examined. Sarkar on Evidence (14th Edition Vol 2 at page 1980 by

placing reliance on Mackintosh v Nobin Money Ind. Jur NS 160 has

observed that a witness examined by the plaintiff cannot be recalled as

witness of the defendant without leave obtained at the end of the first

examination. In the present case the leave to recall has been filed after

four years of examination and cross examination.

19. The Objector/applicant upon learning of the PW2 having

deposed falsely in the present case, if genuinely aggrieved by such false

deposition, would have taken appropriate action for the prosecution of

PW2 for the offence so committed by him. Instead, the objector

/Applicant has been pursuing these applications for the last three years,

thereby derailing recording of evidence. Such conduct of the applicant

shows that the witness is in truck with him and the recall of the witness

is an artifice. The application thus appears to be mala fide.

20. S.S.S. Durai Pandian relied on by the Senior counsel for the

applicant deals with recall of witness for a second cross examination

which in that case was permitted on the court finding that the same was

not prejudicial to the opposite party. It was however held that the same

could be allowed only under special and extraordinary circumstances

and with greatest care. The present case is different. The applicant

now wants to examine in chief the witness whom he had earlier cross

examined.

21. The practice of a party calling the opposite party as witness

has even otherwise been deprecated by the courts as an unhealthy

practice. See Kaliaperumal v Pankajavalli (1999) 1 MLJ 97. In the

present case the objector seeks to recall a witness examined by the

petitioner and whom the objector had earlier cross examined, but now

wants to examine the said witness as his own. In my opinion such

practice also needs to be curbed and is equally unhealthy as a practice

of calling the opposite party as a witness. As far back as in Ramjag

Ahir v Emperor AIR 1928 Patna 203 it was held that a prosecution

witness not called by the prosecution, cannot be permitted to be cross

examined by the prosecution. Again, in Vadde Sanpangi v Beccani,

MANU/AP 0329/1998 it was held that there is no provision in the CPC

which permits a party to examine a witness of another party on his

side. It was further held that such practice is not desirable as it might

lead to endless examination of the same witness and lead to

undesirable consequences in conducting the trial.

22. Even the facts of the present case do not entitle the

respondent to recall PW2. As noticed above, the applicant/objector and

in fact all the objectors have not really disputed the making of the Will

dated 15th May, 1994. Their only objection to the same was that the

same was procured by the petitioner by exercising undue influence.

The signature of the deceased Joginder Singh Bhatia as well as of both

the attesting witnesses on the same were also not disputed. It is not

the objection that Shri Joginder Singh Bhatia had not signed in the

presence of the witnesses or that the attesting witnesses had not signed

in the presence of Shri Joginder Singh Bhatia or in the presence of each

other. The objector/applicant is entitled to lead evidence only in

consonance with its pleadings. The objector/applicant relies on a Will

dated 15th November, 1994 of the deceased Joginder Singh Bhatia. The

Will dated 15th November, 1994 itself admits the execution of the Will

dated 15th May, 1994. Thus, in my opinion, the only challenge to the

Will dated 15th May, 1994 is of undue influence and of the petitioner

having played a prominent role in execution of the same; otherwise the

execution thereof by the deceased is not objected. If that be so, the

objectors cannot be permitted to lead evidence (by recall of PW2) to

disprove the due execution of the Will dated 15th May, 1994. It will

tantamount to allowing the applicant/respondent No.5 to withdraw the

admission and which, in relation to amendment of pleadings, has been

held, cannot be permitted.

23. This court in S. Amarjit Singh v State AIR 1999 Delhi 33, in

a testamentary case, declined to entertain arguments of which there

was no basis in pleadings/objections to the grant of probate. This court

relied upon Sri Venkataramana Devaru and Ors. v. The State of

Mysore and Ors. 1958 SCR 895 where it was held:

"The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of the parties on the basis of that finding. We have accordingly declined to entertain this contention."

IA.No. 10455/2007 is thus dismissed.

24. IA.No.10472/2007 is consequential to IA.No.10455/2007. The

applicant/objector vide IA.No.10472/2007 seeks to examine Shri

Harpreet Singh Bedi and Shri Jagmohan S Sawhney who will depose as

to what Shri Yoginder Singh Bhatia had told him. Their evidence being

hearsay is in any case not admissible. Even otherwise, if Shri Yoginder

Singh Bhatia is not to be recalled, there is no need to examine Shri

Harpreet Singh Bedi and Shri Jagmohan S Sawhney who are sought to

be examined only in support of reasons for recall of Shri Yoginder Singh

Bhatia. Accordingly, IA.No.10472/2007 is also dismissed.

25. IA.No. 10850/2007 has been filed under Order 7 Rule 14 (3) of

the CPC to place on record copies of records of Hamidia Hospital,

Bhopal, M.P. where the other attesting witness to the Will Shri Ravinder

Pal Singh is stated to be admitted on the date when he has purported to

witness to the Will dated 15th May, 1994. The respondent No.5 states

that he went to Bhopal in June, 2007 and met one Mr Mohinder Singh

who informed that Shri Ravinder Pal Singh, on the date of execution of

the alleged Will dated 15th May, 1994 was admitted to the said hospital;

the respondent No.5/applicant claims to have thereafter obtained the

records from the hospital. On inquiry I was told that Hamidia

Hospital, Bhopal is a Government hospital.

26. Needless to state that no questions were put to PW1 R.P.

Singh in his cross examination already effected on this aspect. Further,

as above discussed, the execution of Will dated 15th May, 1994 stands

admitted in the objections of the applicant/respondent No.5 as well as

other respondents. The Will dated 15th November, 1994 relied upon by

the respondents also admits the existence of Will dated 15th May, 1994.

I, therefore, for the same reasons do not find the respondent No.5

entitled to file the said documents. A party cannot be permitted to file

documents contrary to his pleadings. Cases remain pending for long

and the parties cannot be permitted to enter into a roving and fishing

inquiry and to lead evidence inconsistent with the case set up in their

pleadings. If the same were to be permitted, it will frustrate the very

essence of pleadings. Accordingly, this application is also dismissed.

RAJIV SAHAI ENDLAW (JUDGE)

August 22, 2008 M