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2016 DIGILAW 513 (RAJ)

Suryakant Vyas v. Satish Vyas

2016-04-11

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition is directed against order dated 08.02.2016 passed by the trial court, whereby, the application filed by the petitioner under Section 45 of the Evidence Act, 1872 ('the Act') has been rejected. 2. The respondent No. 1 filed proceedings under Sections 272 and 370 of the Indian Succession Act, 1925 seeking grant of probate of the Will said to have been executed by his father Shri Srikishan Vyas. 3. The application was opposed by the petitioner along with another brother Shashi Kant Vyas and it was claimed that the Will was cancelled by another document dated 08.10.2007. 4. A replication was filed by the respondent, inter alia, denying his signatures and that of his father on the document in question. 5. The petitioner filed application under Order 11, Rule 14 CPC for production of the document, which application was rejected by the trial court. 6. Where after, petitioner filed application under Section 65 of the Act for production of secondary evidence, which was allowed and a photo copy of the document dated 08.10.2007 was permitted to be produced as secondary evidence. 7. During the course of cross-examination of PW-1 - plaintiff, the petitioner confronted PW-1 with the document, when PW-1 denied his signatures. Whereon, an application under Section 45 of the Act was filed by the petitioner, which application came to be rejected by the trial court indicating that application at that stage was not justified. The said order was questioned by way of filing S.B. Civil Writ Petition No. 2581/2015, which writ petition was disposed of by order dated 28.04.2015, inter alia, holding that application was rejected at the stage at which it was filed, which necessarily means that petitioner would be free to file application at subsequent stage and on making out a case, the trial court would be free to pass order on application in this regard. 8. Where after, the cross-examination of PW-1 was concluded. Prior to completion of the cross-examination under orders of this Court, two other witnesses had already been examined. 9. 8. Where after, the cross-examination of PW-1 was concluded. Prior to completion of the cross-examination under orders of this Court, two other witnesses had already been examined. 9. Where after the petitioner produced three witnesses and the matter was fixed for final arguments, when adjournment was sought on more than one occasion and thereafter the present application was filed under Section 45 of the Act seeking sending of the document in question for being examined by the Forensic Science Laboratory for the signatures of the plaintiff Satish Vyas on the document Exhibit-A/1. 10. The application was opposed by the respondent. 11. The trial court after hearing the parties came to the following conclusion:- "6. As such, in my humble view, since from the very beginning the very existence of the said subsequent 'Will' dated 08.10.2007, was being questioned by the plaintiff, therefore, in my opinion, the defendants should have made all endeavours, to prove the execution of this said subsequent 'Will' dated 08.10.2007, and, for that the prayer for FSL examination, must have been made at earlier stage. 7. On a close scrutiny of record, I find that in Ex. A-1, it has been mentioned that an executor did not have enough time, that is why, he was unable to give the details, in the will itself. This 'Will', is said to have been executed on 08.10.2007, whereas the executor Shri Kishna Vyas, had passed away on 30.08.2009 (as revealed by death certificate Ex.1). In the evidence adduced by defendants I do not find any mention about the fact of Late Shri Krishna Vyas's not having time at that moment, to mentioned the details, in the 'Will'. 8. In my humble view, the applicants/defendants nos. 4 & 5, have not made out a case, so as to enable this court, to get the photo copy Ex. A-1 examined by FSL. Therefore, in my humble view, the application does not deserve to be allowed and the same is hereby dismissed." 12. It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application by terming the same as belated, inasmuch as, the earlier application was rejected by coming to the conclusion that the same could not have been entertained at that stage. It was further submitted that merely on account of delay an application under Section 45 of the Act cannot be dismissed. It was further submitted that merely on account of delay an application under Section 45 of the Act cannot be dismissed. 13. Reliance has been placed on M. Govindaraj v. Dr. V. Nallasivan, 2008 (3) CCC 425, Guru Govindu v. Devarapu Venkataramana, 2006 (4) CCC 619 (A.P.), Chityalgundameede Ramalakshmamma v. Ediga Rangamma & Ors., 2013 (1) CCC 544 (A.P.) and Abdul Mutlib v. State of Raj. & Ors., 2013 (1) CCC 098. 14. Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner. It was submitted that the petitioner was well aware of the controversy from the beginning and should have filed application at appropriate stage. It was submitted that even after the observations were made by this Court by its order dated 28.04.2015, the petitioner choose to examine three witnesses and did not move any application and after seeking adjournments for final arguments has filed the application merely for the purpose of delaying the disposal of the case. It is further submitted that a document, which is a mere photocopy cannot be sent for examination of FSL and, therefore, also the trial court was justified in rejecting the application. 15. Reliance has been placed on Bheri Nageswara Rao v. Mavuri Veerabhadra Rao & Ors., AIR 2006 Andhra Pradesh 314. 16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 17. A perusal of the sequence of events reveals that the petitioner had at the stage of cross-examination of PW-1, on his denying signatures on document Exhibit-A/1, had sought sending of the document in question to FSL and at that stage the application was rejected by the trial court on account of the stage at which the application was filed. The order passed by the trial court was upheld by this Court by observing that the petitioner would be free to move application at appropriate stage. 18. The trial court has rejected the application filed by the petitioner by the impugned order merely by holding that application should have been made at the earlier stage and also made some other observations as well. However, the main plank for rejection of the application is that the application should have been filed at earlier stage. 18. The trial court has rejected the application filed by the petitioner by the impugned order merely by holding that application should have been made at the earlier stage and also made some other observations as well. However, the main plank for rejection of the application is that the application should have been filed at earlier stage. The trial court has lost site of the fact that in fact an application was made at earlier stage, which was rejected at that stage, the petitioner cannot be made to loose on account of the stage on both the occasions, earlier on account of the same being allegedly premature and now the same being delayed. The trial court has not examined the merits of the application filed by the petitioner as such and has rejected the application. 19. So far as the submission made by learned counsel for the respondents regarding the delay in filing the application is concerned, the fact that this Court permitted the petitioner to file application at an appropriate stage, necessarily did not mean any particular stage and it cannot be said that the application moved at the stage after the evidence of the petitioner was over would by itself make the application not maintainable. 20. So far as the issue raised by the respondent regarding maintainability of the application qua a photo copy is concerned, as the trial court has not dealt with the said issue, it would not be appropriate for this Court to express any opinion on the said aspect. 21. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 08.02.2016 passed by the trial court is set aside. The trial court is directed to decide the application under Section 45 of the Act filed by the petitioner on merits. The next date fixed by the trial court is today i.e. 11.04.2016 itself. The trial court will fix a date for arguments on the said application and decide the same expeditiously.