Delhi High Court
Smt. Wanti Bai vs State & Ors. on 6 July, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M) No.846/2010 & CM No. 11444/2010
% Judgment reserved on: 5th July, 2010
Judgment delivered on: 6th July, 2010
Smt. Wanti Bai
W/o Sh. Ram Lal
R/o 2/101, Gita Colony,
Delhi - 110031
....Petitioner.
Through: Mr. S.K.Sharma, Adv.
Versus
1. State
2. Sh. Motan Das
S/o Sh. Rura Ram
3. Sh. Prem Kumar
4. Sh. Sunil Kumar
5. Sh. Naresh Kumar
6. Sh. Rajesh Kumar
7. Sh. Vikram Kumar
Respondents No.3 to 7 are Sons of
Sh. Motan Dass and Respondents No. 2 to 5
R/o 1366, Rajpura Town, Punjab
8. Sh. Baldev Raj
S/o Sh. Motan Dass,
R/o 16, Gita Colony, Delhi
9. Smt. Nirmala Devi
W/o Sh. Ashwini Kumar
R/o 2842, Rajpura Town, Punjab
CM (M) No. 846/2010 Page 1 of 7
10. Smt. Veen Rani
W/o Sh. Naresh Kumar
R/o 2704, Rajpura Town, Punjab
....Respondents.
Through: None
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
This petition under Article 227 of the Constitution of India has been filed
for setting aside of the order dated 21.4.2010, passed by the Additional District
Judge, Delhi vide which application filed by the petitioner under Order 7 Rule 14
(1) of Code of Civil Procedure (for short as „Code‟) was dismissed with costs of
Rs.2,000/-.
2. The brief facts which emerges from the impugned order are that, petitioner
filed a petition before the trial Court for grant of probate on 16.12.2006 on the
basis of Will of her deceased mother Smt. Talian Bai, dated 31.12.1990. The
property in question was purchased by Sh. Ram Chand, husband of deceased Smt.
Talian Bai. As per the petition, Smt. Talian Bai had become the owner of the
property on the basis of the Will dated 7.2.1971 executed by Sh. Ram Chand.
Neither the original nor the photocopy of the Will dated 7.2.1971 was placed on
record by the petitioner despite the fact that this Will of Sh. Ram Chand was also
disputed by the respondents in their objections.
3. It is contended by learned counsel for the petitioner that there is a mention
of Will dated 7.2.1971, executed by Sh. Ram Chand in favour of Smt. Talian Bai,
in the list of documents as well as in the list of witnesses, filed by the petitioner in
the suit. Will dated 7.2.1971 is not a foreign document, which was produced
suddenly in the Trial Court. The existence of the said Will has been mentioned in
the petition itself by the petitioner.
4. It is further contended that the Trial Court erred in not appreciating the
fact that Will dated 7.2.1971 is imperative for the proper and just disposal of this
case.
5. Present petition, as stated above has been filed under Article 227 of the
Constitution of India. Jurisdiction of this Court under this Article is very limited.
On this point, decision of Supreme Court reported as Mohd. Yusuf vs. Faiz
Mohd. & Ors. 2009 (1) SCALE 71 may be referred, in which the Court held;
"The jurisdiction of the High Court under Article
226 & 227 of the Constitution is limited. It could
have set aside the orders passed by the Learned trial
court and Revisional Court only on limited ground,
namely, illegality, irrationality and procedural
impropriety".
6. Similarly, in Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing
Mohansing Pardeshi Deceased through his Heirs and Legal representatives,
JT1995(7)SC400, Apex Court observed;
"The High Court under Article 227 of the
Constitution of India cannot assume unlimited
prerogative to correct all species of hardship or
wrong decisions. It must be restricted to cases of
grave dereliction of duty and flagrant abuse of
fundamental principles of law or justice, where
grave injustice would be done unless the High Court
interferes."
7. Keeping in view the principles laid down by the Supreme Court in above
cases, it is to be seen that whether there is merit in the present petition or not and
whether impugned order passed by learned Trial Judge, is illegal and irrational.
8. It is well settled that if any document or a copy thereof could not be filed
with the plaint, it may be received in evidence with the leave of the Court, which
the Court shall grant in genuine cases.
9. Reason for non-filing of the document in question in the present case is
that, the petitioner "inadvertently" could not file the original or photocopy of the
document.
10. Trial Court while dealing with this plea of the petitioner, observed;
"This fact is not denied by the petitioner that she
was always in possession of this Will. No reason
has been given why original or copy of the Will of
Sh. Ram Chand was not placed on record for the
last about 3 ½ years from the date of institution of
the suit. As per law the original documents were
required to be filed alongwith the petition as per
Order 7 Rule 14 (1) CPC. Clause 3 of Order 7 Rule
14 CPC prohibits filing of such documents at later
stage without the special leave of the court. The
provision of order 13 rule 2 CPC under which the
documents could be taken at later stage on record
has been deleted from the CPC now.
In the application except mentioning the
word "inadvertently" no other reason is disclosed
why the original Will of Sh. Ram Chand or its copy
could not be filed earlier despite petitioner was
having its possession. The statement of petitioner
was recorded in court on 20.5.2008 in which also
this Will was referred to but even at that stage this
document was not produced or sought to be
exhibited. Counsel for the respondent in the cross
examination of petitioner tried to challenge the
correctness of this Will also. The file was inspected
by counsel for the petitioner several time but at no
stage earlier to moving this application it was
informed to the court that inadvertently the original
document could not be filed. At the time of
recording of statement of PW-3 on 10.8.2009 this
Will of Sh. Ram Chand was sought to be proved but
petitioner could not do the same as neither the
original nor the copy was lying on record. Counsel
for petitioner then stated he will move an
application for bringing on reocrd this Will.
Thereafter the case was adjourned to 5.10.2009 and
2.12.2009 but on those two dates also no such
application was moved and at last this application
was filed after a delay of about six months on
9.2.2010. Petitioner is unable to explain even this
delay of six months which also can be treated as
sufficient ground to reject this application."
11. Trial Court further observed;
"Had the petitioner not in possession or power of this
document then her application could be considered
but despite knowledge and possession of the original
Will of Sh. Ram Chand the non production of the
same despite relying upon it in the petition clearly
leads to the inference that petitioner did not want to
bring on record the original Will at the appropriate
stage and now when 6-7 witnesses of the petitioner
has been examined she by moving this application is
trying to fill up gaps and lacunas of her case which
have come on record from the cross examination of
her witnesses. Keeping in view the delay in moving
this application, absence of any justified and
sufficient reason as well as the negligent conduct of
the petitioner, I find no ground to allow this
application. Same is hereby dismissed with cost of
Rs.2000/- out of which Rs.1000/- is payable to
respondent no.8 and remaining Rs.1000/- is payable
to other contesting respondents jointly."
12. After going through the impugned order, it is crystal clear that the
petitioner had been in possession and power of the document since the time of
filing of the probate petition but for reasons best known to her she did not produce
the same. Moreover after seeking adjournments, the petitioner did not file any
application before the Trial Court for placing this document on record. Moreover
6-7 witnesses of petitioner has already been examined as well as cross-examined
and now if this application is allowed, great prejudice would be caused to the
respondents.
13. Under these circumstances, I do not find any reason to disagree with the
findings of the Trial Court. The findings given by the learned Trial Judge can by
no stretch of imagination, be termed as illegal or irrational.
14. Hence, there is no merit in the present petition and the same is hereby
dismissed with costs of Rs.5,000/-.
15. Petitioner is directed to deposit the costs with Registrar General of this
court by way of cheque, within four weeks from today.
16. List for compliance on 13th August, 2010.
+CM No.11444/2010
17. Dismissed.
18. Copy of this order be sent to the trial court.
6th July, 2010 V.B.GUPTA, J.
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