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2019 DIGILAW 398 (JHR)

Uttam Kumar Das v. 16 Annas Raiyats of Maheshpur

2019-02-07

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India wherein order dated 01.09.2018 passed by the learned District Judge-I, Pakur in Probate Case No. 01 of 2008 has been challenged whereby and whereunder the petition dated 16.07.2018 filed under order VII Rule 14(3) of the Code of Civil Procedure has been rejected. 2. The brief facts of the case of the petitioner is that, one probate case has been instituted being Probate Case No. 01 of 2008, wherein the objector has filed objection to the said will and disputed the said document. It is the grievance of the petitioner that although there is no pleadings to the effect that the testator of the will is not literate, but in evidence it has been said by the objector that the testator was illiterate and, therefore, the said application has been filed on 16.07.2018 under the provision of order VII Rule 14(3) of the Code of Civil Procedure. 3. It is admitted case of the petitioner that the testator illiterate, is not the part pleading and, as such, the court after going through the application dated 16.07.2018 has rejected it and as such not committed any infirmity for the following reasons: (i) The objector has filed objection on 29.05.2008 from which it is evident that no such pleading is made to that effect that testator is illiterate. (ii) The application under order VII Rule 14(3) of the Code of Civil Procedure has been filed on 16.07.2018 i.e. after lapse of about 10 years, however, it is the statement of the learned counsel for the petitioner that prior to 16.07.2018 there was no occasion to file such application since it was deposed by the objector at the time of evidence and as such, this application has been filed. (iii) The question herein that the suit is to be decreed on the basis of pleading and the document is to be filed in support of the pleading and if there is no pleading that such document is filed no prejudice would be caused to other side. Further no record has been produced to support the assertion that the same has been brought on record in evidence. Further no record has been produced to support the assertion that the same has been brought on record in evidence. In view thereof, in absence of the pleading if the aforesaid document would be allowed to be incorporated in the suit that too after lapse of 10 years, the same would not be proper and furthermore, the petitioner is not going to be prejudiced in any way in absence of any pleading to that effect. (iv) The scope of order VII Rule 14(3) of the Code of Civil Procedure is that the document is to be accepted with the leave of the Court and it is upon the court to get satisfied regarding the relevance of the said document since the court while going through the same, after taking into consideration the fact that nothing is in the petition and who shall prove the volume of document and further the documents which were in the custody of the petitioner, why it has not been filed on earlier occasion there is no sufficient explanation to that effect has rejected it. 4. In view thereof, considering the fact that the writ petition is under Article 227 of the Constitution of India and taking into consideration the fact that the case is of the stage of argument and also considering the fact that testator being illiterate is not the part of the pleading, I do not find any reason to interfere with the impugned order. Accordingly, the writ petition is dismissed.