Kedar Prasad Bichpuria vs Mukesh Kumar Bichpuria
2022 Latest Caselaw 16335 MP

                                     1
       IN THE HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                             BEFORE
      HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                    ON THE 9 th OF DECEMBER, 2022
                    MISC. PETITION No. 5960 of 2022

BETWEEN:-
1.    KEDAR PRASAD BICHPURIA S/O LATE PARMANAND
      BICHPURIA, AGED ABOUT 69 YEARS, OCCUPATION:
      RETIRED GOVT. SERVANT MAHARAJPUR NEAR PATHAK
      DHABA HOUSING BOARD COLONY TEHSIL AND DISTRICT
      JABALPUR (MADHYA PRADESH)

2.    KAMLESH BICHPURIA S/O LATE PARMANAND BICHPURIA,
      AGED ABOUT 45 YEARS, OCCUPATION: BUSINESS R/O
      HOUSING BOARD NEAR SHANTI NAGAR PANI KI TANKI
      STREET NO. 5 TAHSIL AND DISTRICT JABALPUR (MADHYA
      PRADESH)

                                                           .....PETITIONERS
(BY SHRI MUKHTAR AHMAD - ADVOCATE)

AND
1.    MUKESH KUMAR BICHPURIA S/O LATE PARMANAND
      BICHPURIA, AGED ABOUT 41 YEARS, MANVIYAGANJ
      WARD TEHSIL AND DISTRICT KATNI (MADHYA PRADESH)

2.    PRAKASH    CHAND    BICHPURIA(GUPTA) S/O LATE
      PARMANAND BICHPURIA, AGED ABOUT 61 YEARS, R/O
      HOUSING BOARD NEAR JAIN MANDIR TAHSIL AND
      DISTRICT KATNI (MADHYA PRADESH)

3.    VINOD BICHPURIA S/O LATE PARMANAND BICHPURIA,
      AGED ABOUT 55 YEARS, R/O RAJENDRA COLONY BUDHAR
      CHINA GUEST HOUSE DISTRICT SHAHDOL (MADHYA
      PRADESH)

4.    SMT. KALPANA BICHPURIA(GUPTA) S/O SHRI BHUPENDRA
      GUPTA D/O LATE PARMANAND, AGED ABOUT 40 YEARS,
      KASTURBA PARK SAINATH KRIPA BUILDING MAYENDAR
      MUMBAI M.H. (MAHARASHTRA)

5.    SMT. SANGEETA BICHPURIA W/O LATE ANIL KUMAR
      BICHPURIA, AGED ABOUT 45 YEARS, R/O KHIRANI BESIDE
                                   2
     MAA SHARDA ELECTRONIC SHOP STREET KATNI TAHSIL
     AND DISTRICT KATNI (MADHYA PRADESH)

6.   SHUBHAM BICHPURIA S/O LATE ANIL KUMAR BICHPURIA,
     AGED ABOUT 18 YEARS, R/O KHIRANI BESIDE MAA
     SHARDA ELECTRONIC SHOP STREET KATNI TAHSIL AND
     DISTRICT KATNI (MADHYA PRADESH)

7.   SATYAM BICHPURIA D/O LATE ANIL KUMAR BICHPURIA,
     AGED ABOUT 16 YEARS, OCCUPATION: MINOR THROUGH
     MOTHER SMT. SANGEETA BICHPURIA WD/O ANIL KUMAR
     BICHPURIA R/O KHIRANI BESIDE MAA SHARDA
     ELECTRONIC SHOP STREET KATNI TAHSIL AND DISTRICT
     KATNI (MADHYA PRADESH)

8.   SHUBHI BICHPURIA D/O LATE ANIL KUMAR BICHPURIA,
     AGED ABOUT 13 YEARS, OCCUPATION: MINOR THROUGH
     MOTHER SMT. SANGEETA BICHPURIA WD/O ANIL KUMAR
     BICHPURIA R/O KHIRANI BESIDE MAA SHARDA
     ELECTRONIC SHOP STREET KATNI TAHSIL AND DISTRICT
     KATNI (MADHYA PRADESH)

                                                                     .....RESPONDENTS
(BY SHRI A.K. JAIN - ADVOCATE FOR RESPONDENT NO.1)

     This petition coming on for admission this day, the court passed the following:
                                        ORDER

The petitioners have prayed for the following reliefs:-

i- That, Hon'ble Court be further pleased to set aside the impugned order dated 28.11.2022 contained in Annexure P/8 and the Hon'ble Court be further pleased to allow the application of the petitioner dated 24.11.2022 seeking examination of the signature of testator and also the signature of attesting witnesses by a duly qualified handwriting expert, in the interest of justice.

ii- Cost of the petition be awarded.

iii- Any other writ/order or direction which this Hon'ble Court deems fit and proper may also be granted.

The brief facts leading to filing of this case are that the respondent No.1/plaintiff

has filed a suit for declaration and permanent injunction in respect of the immovable property which is consisting of a double storied building having 07 rooms at the ground floor, letrin bathroom, courtyard and 04 rooms at the first floor. The defendants had filed a written statement on 22.07.2014 in which they have specifically stated that the alleged will dated 15.09.2008 is a fake document, the testator Parmanand Bichpuria never signed the said will. In the statement under Order 18 Rule 4 of the CPC the signature of attesting witness of Rajiv Agrawal appears to be entirely different from his alleged signature in the will dated 15.09.2008. Therefore, attesting witness namely Ashish Kumar Jain also filed affidavit under Order 18 Rule 4 of the CPC and he was cross examined in the Court where also the signature on the deposition is different from the alleged signature on the will. The petitioners filed an application under Section 45 of the Evidence Act for examining the signature of the alleged testator Parmanand Bichpuria and also the signature of the attesting witnesses by a duly qualified handwriting expert. The learned Court below rejected the application solely on the ground that as per instructions of the High Court the impugned civil suit is to be disposed of by 31.12.2022 which is not justified.

Learned trial Court has prima facie come to the conclusion that the defendants have not filed any document containing the signature of Parmanand Bichpuria, therefore, in absence of any signature on record, the signature made on the will cannot be examined.

In view of above, the trial Court has rightly rejected the application. Admittedly,

discretion to deal with the prayer for amendment has been exercised by the trial Court on the sound principles of law.

Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution can not be exercised to correct all errors of the judgment of a Court acting within its limitation. It can be exercised where the orders is passed in

grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: Jai Singh and others Vs. M.C.D. and others (2010) 9 SCC 385 and Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329]. In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.

In view of the preceding analysis, the miscellaneous petition fails and is hereby dismissed.

(S. A. DHARMADHIKARI) JUDGE DPS

Digitally signed by DHEERAJ PRATAP SINGH Date: 2022.12.14 17:08:48 +05'30'