Delhi High Court
Krishan Lal Gandhi vs Rajendar Prasad on 23 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1059/2012 and C.M. No.16624/2012 (stay)
% 23rd July, 2014
KRISHAN LAL GANDHI ......Petitioner
Through: Counsel for the petitioner (appearance
not given).
VERSUS
RAJENDAR PRASAD ...... Respondent
Through: Ms. Suman Bagga, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the order of the trial court dated 5.9.2012 by which the trial court at
the stage of final arguments permitted the plaintiff/respondent to lead
additional evidence to prove the registered Will dated 25.10.1988 executed
by the father late Sh. Girdhari Lal in favour of the respondent/plaintiff
inasmuch as the respondent/plaintiff is the owner of the suit property in
terms of the Will.
C.M.(M) No.1059/2012 Page 1 of 4
2. No doubt, at the first blush it does appear that the additional
evidence may have been permitted at the stage of final arguments, however,
in the peculiar facts of this case, and considering that Code of Civil
Procedure, 1908 (CPC) is handmaid of justice, and parties do make mistakes
in conduct of their cases, I do not find that the trial court has committed any
error in allowing the application for leading additional evidence to prove the
Will.
3. The subject suit has been filed by the respondent/plaintiff
against the petitioner/defendant/brother claiming possession of the suit
property bearing No.11, Block No.5, Street No.2, Geeta Colony, Jheel
Khuranja, Delhi. The property admittedly belonged to the father Sh.
Girdhari Lal, and the respondent/plaintiff claims, as stated above, ownership
on the basis of the registered Will dated 25.10.1988 executed in his favour
by the father. The respondent/plaintiff had successfully filed two other suits
against the two other brothers, and in which suits the Will was proved, and
which other judgments have been filed and exhibited by the
respondent/plaintiff in the court below. The respondent/plaintiff claims that
he was given wrong advice that filing of such judgments would be sufficient
to prove the Will, but, it thereafter transpired that decree in a suit will only
bind the parties thereto and the Will having been proved in other
C.M.(M) No.1059/2012 Page 2 of 4
proceedings will not help the respondent in the present case, and therefore
the need for additional application to prove the registered Will dated
25.10.1988 executed by the father Sh. Girdhari Lal in favour of the
respondent/plaintiff.
4(i) At this stage, I would like to state that powers under Article 227
of the Constitution of India are discretionary powers. Powers under Article
227 are not exercised if no injustice is caused by the impugned order
although the order, even may be in one manner 'illegal'. It is only in cases
of grave injustice being caused that powers under Article 227 are exercised.
(ii) One additional reason for not interfering in exercise of
discretionary jurisdiction under Article 227 of the Constitution of India is
that if the impugned order is allowed to be set aside, valuable rights in an
immovable property of the respondent/plaintiff will be lost, although people
do make mistakes in conduct of their cases and therefore CPC is a handmaid
of justice providing for remedial measures.
5. In my opinion, valid reasons of being not completely aware of
the law that judgments in other suits passed against the brother where the
Will was proved are not binding in the present case is a sufficient ground for
allowing evidence to be led to prove the Will in this case. Of course, I may
note that Section 13 of the Evidence Act, 1872 may possibly help the
C.M.(M) No.1059/2012 Page 3 of 4
respondent with respect to other judgments too. Even by relying on the other
judgments that Will stands proved, however respondent/plaintiff is justified
in law in wanting to prove the Will in the present suit for possession filed
against the petitioner/defendant.
6. During the course of hearing, I put it to the counsel for the
petitioner/defendant that if the petitioner/defendant is interested may take
sufficient time to vacate the suit premises or this Court is even inclined to
consider awarding of costs of Rs.30,000/- caused for the delay in trial of the
case, but, counsel for the petitioner/defendant on instructions states that
petitioner does not want to take any of the two offers given in the Court on
behalf of the respondent/plaintiff.
7. In view of the above, there is no merit in the petition, and the
same is therefore dismissed, leaving the parties to bear their own costs.
JULY 23, 2014 VALMIKI J. MEHTA, J.
Ne
