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2023 DIGILAW 51 (RAJ)

Chandra Shekhar Sharma v. Shobha Sharma

2023-01-04

ARUN BHANSALI

body2023
ORDER 1. This writ petition has been filed by the petitioner aggrieved against order dated 1.4.2022 passed by the District Judge, Jodhpur Metro, Jodhpur, whereby the application filed by the petitioner under Order VIII Rule 1 and 3 CPC has been rejected. 2. The suit was filed by the respondent seeking probate of a will dated 23.1.1998 executed by deceased Govind Narayan. The petitioner contested the proceedings, inter alia, with the plea that the signatures on the will have been forged and that the document has been got prepared after death of Govind Narayan Sharma. The trial Court framed the issues and the burden of the document being forged was placed on the petitioner. 3. During pendency of the suit, the petitioner filed an application under Section 45 of the Evidence Act. The application came to be decided by order dated 19.10.2016, wherein the Court came to the conclusion that prima facie the signatures on the will as well as the admitted signatures are not different and consequently, rejected the said application. 4. Whereafter, apparently the matter remained pending for over 5 years, whereafter the application under Order VIII Rule 1 CPC has been filed alongwith a report procured from one Bombay Forensic (Annex.7) dated 27.6.2019 seeking to indicate that the signatures contained on the Will were not that of deceased Govind Narayan based on comparison with signatures on a cheque dated 17.5.1983 and the reply dated 11.1.1983, besides some signatures said to have been contained on the bank documents. 5. The application was contested by the plaintiff. The trial Court vide its impugned order dated 1.4.2022, came to the conclusion that as the statements of the plaintiff as well as the defendant already stands recorded on 12.11.2021 and the application has been filed after the statement of the petitioner had already been recorded and cross-examination was over, the filing of the application with delay was liable to be rejected. 6. Learned counsel for the petitioner made submissions that the rejection of the application by the trial Court is not justified only on account of the delay in filing the application as this is the best available evidence with the petitioner with regard to the burden which has been cast on the petitioner with regard to issue no. 2 and, therefore, the rejection by the trial Court is not justified. 7. 2 and, therefore, the rejection by the trial Court is not justified. 7. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 8. The report sought to be produced by the petitioner is dated 27.6.2019, the same has been produced alongwith an application on 12.11.2021, as to what prevented the petitioner to produce the said report for over 21/2 years that also before recording of the statements before the trial Court, inasmuch as, the crossexamination of the petitioner was over on 17.9.2021, has not been indicated, which clearly indicates the attempt on part of petitioner to somehow delay the proceedings. 9. Besides the above, once in the year 2016 itself based on the documents sought to be produced by the petitioner, the Court prima facie came to the conclusion that the signatures on the Will were prima facie similar to that of the admitted signatures, the attempts made after 5 years to produce the report on the ground that same was the best available evidence with the petitioner for discharging the burden cannot be countenanced. 10. The order passed by the trial Court cannot be faulted on any ground, the petition has no substance, the same is, therefore, dismissed.