Gaffar Baig vs Divine Light School for Blind White Field and Others

Ram Mohan Reddy, J.—Plaintiff in O.S. No. 722/2011 on the file of the Fast Tack Court-III, Bengaluru Rural District, Bengaluru, aggrieved by the order dated 12th August 2014 rejecting I.A. No. 49 under Order XVI Rule 1 (2) and 6 of the Code of Civil Procedure, has presented this petition.

Suffice it to notice the following relevant facts:

"Petitioner instituted suit for declaration of title to immovable property in Sy. No. 33 of Pattandur Agrahara arraigning respondents as defendants, asserting right, title and interest over the said property on the premise, that, the said property belonged and was owned by one Lt. Col. Ms. Mary Fernandez, bearing No. NR-12753 of Military Hospital, Meerut, who by a Will date 17.03.1970, bequeathed the suit schedule property in favour of one Mr. Markose, S/o Dominic while appointing him as a sole executor of the Will, identified as a holder of Malaysian Certificate of Identity No. 006746, resident of Puthuval Parayidam, Beech Post, Trivendrum, Kerala State. According to the plaintiff, the original of the Will was recorded in a register maintained by the military, defence organization, a certified copy of which when issued was marked as Ex. P.16. Petitioner, in order to prove the contents of the said Will, filed I.A. No. 49 under Order XVI Rule 1 (2) and 6 of CPC to summon the officer of the Directorate General Medical Services (Army)/MPRS (O), Integrated HQ of MOD (Army), Adjutant General''s Branch, ''L'' Block, New Delhi, to produce and speak to the documents such as:- service register of deceased Lt. Col. Ms. Mary Fernandez, with respect to the Will dated 17.03.1970; service particulars of Jasbir Singh who issued the certified copy of Ex. P.16 along with records containing his original signatures during the period 1983-1985 and; the post destruction core entries register with regard to entries made in respect of the aforesaid Will. In the affidavit accompanying the application, it was stated that defendant No. 19, none other than the said Markose, S/o Dominic, since deceased, admitted the fact of being beneficiary under the Will dated 17.03.1970 of Ms. Mary Fernandez, marked as Ex. P.16 while the certified copy of the Will was issued by an officer by name Mr. Jasbir Singh and its covering letter was marked as Ex. P.15, both of which were handed over by 19th defendant to the plaintiff. In addition, it is stated that 19th defendant being the vendor-in-title was required to prove the execution of the said Will by the testatrix and on account of the death of 19th defendant, there is a necessity to secure the witness from the military department to produce and speak to the original of the register. That application was opposed by filing statement of objections of defendant Nos. 1, 2, 9 and 10, inter alia, not admitting the factum of execution of the Will; its genuineness and the provisions of the Indian Succession Act, more appropriately Section 213 to decline the relief sought for." 3. The Trial Court, in great elaboration having extracted the contents of the application and objection, framed points for consideration and while recording reasons, extracted the observations of B.N.S. Reddy, Deputy Commissioner of Police who is said to have filed a report in W.P. No. 22743/2005 (GM-RES-PIL) to conclude that the signature of the person by name Jasbir Singh who is said to have certified the copy of the Will was not genuine, while, the record relating to the Will was destroyed and that the copy of the Will was not in the format as prescribed for recording of Wills of military personnel.

Ex-facie, the order impugned suffers from an error apparent on the face of the record. It must be pointed out that it was not for the Trial Court to go into the merit or demerit over validity or legality of the Will, Ex. P.16 at a stage when the plaintiff sought to prove the contents of the said Will by summoning and examining the witness who is said to be the custodian of the original register in which the testatrix had made and affixed her signature over the alleged Will. It may be that some police personnel submitted a report before the Division Bench of this Court in a Public Interest Litigation, but in the absence of any order of the Division Bench accepting the said report as evidence or admissible as evidence under the Evidence Act, the Trial Court fell in error in placing reliance over the contents of that report that report to reject the claim of the plaintiff to summon the witness to prove the Will of late Lt. Col. Ms. Mary Fernandez. Suffice it to notice that the Court below on an extraneous consideration tangent to the relevant point, placed reliance upon irrelevant and inadmissible material to record conclusions in exercise of discretion under Order XVI Rule 1 (2) and 6 of CPC.

In the facts and circumstances noticed supra, though plaintiff was required to make the application much before the closure of his case, nevertheless, filed the application at a stage when the suit was posted for arguments on merits. This by itself cannot be a circumstance for rejecting the application to adduce evidence relevant for complete adjudication of the dispute. Though such is not the reason for rejecting the application, nevertheless, in the facts and circumstances, the application deserved acceptance.

In my considered opinion, ends of justice would be met by permitting the relief in I.A. No. 49 and summoning the witness, in order to prove the contents of Ex. P.16 extending an opportunity to the defendants to cross examine the witness, if necessary.

Viewed in that angle and as rightly submitted by Sri T.R. Subbanna, learned Senior Counsel for respondents 9 and 10 that proceeding as it is, is protracted without being concluding despite the directions of the Division Bench to do so within a time frame, ends of justice would be met by allowing I.A. No. 49 on payment of cost. In the result, this petition is allowed. Order dated 12th August 2014 of the Court below is quashed. I.A. No. 49 is allowed. Sri T.R. Subbanna, learned Senior Counsel submits that instead of cost, atleast a time frame be fixed to close the evidence and conclude the proceeding. Hence, the Court below is directed to ensure issue of summons to the witness forthwith returnable at the earliest and conclude the proceeding in any event by 30.06.2015.