Smt. Wanti Bai vs State and Others

V.B. Gupta, J.—This petition under Article 227 of the Constitution of India has been filed for setting aside of the order dated 21 .4.2010, passed by the Additional District Judge, Delhi vide which application filed by the petitioner under Order 7 Rule 14(1) of CPC (for short as ''Code'') was dismissed with costs of Rs. 2,000/-.

The brief facts which emerges from the impugned order are that, petitioner filed a petition before the trial Court for grant of probate on 16.12.2006 on the basis of Will of her deceased mother Smt. Talian Bai, dated 31 .12.1990. The property in question was purchased by Sh. Ram Chand, husband of deceased Smt. Talian Bai. As per the petition, Smt. Talian Bai had become the owner of the property on the basis of the Will dated 7.2.1971 executed by Sh. Ram Chand. Neither the original nor the photocopy of the Will dated 7.2.1971 was placed on record by the petitioner despite the fact that this Will of Sh. Ram Chand was also disputed by the respondents in their objections.

It is contended by learned Counsel for the petitioner that there is a mention of Will dated 7.2.1971, executed by Sh. Ram Chand in favour of Smt. Talian Bai, in the list of documents as well as in the list of witnesses, filed by the petitioner in the suit. Will dated 7.2.1971 is not a foreign document, which was produced suddenly in the Trial Court. The existence of the said Will has been mentioned in the petition itself by the petitioner.

It is further contended that the Trial Court erred in not appreciating the fact that Will dated 7.2.1971 is imperative for the proper and just disposal of this case.

Present petition, as stated above has been filed under Article 227 of the Constitution of India. Jurisdiction of this Court under this Article is very limited. On this point, decision of Supreme Court reported as Mohammed Yusuf Vs. Faij Mohammad and Others, may be referred, in which the Court held;

The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety.

Similarly, in Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, , Apex Court observed;

The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.

Keeping in view the principles laid down by the Supreme Court in above cases, it is to be seen that whether there is merit in the present petition or not and whether impugned order passed by learned Trial Judge, is illegal and irrational.

It is well settled that if any document or a copy thereof could not be filed with the plaint, it may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases.

Reason for non-filing of the document in question in the present case is that, the petitioner "inadvertently" could not file the original or photocopy of the document.

Trial Court while dealing with this plea of the petitioner, observed;

This fact is not denied by the petitioner that she was always in possession of this Will. No reason has been given why original or copy of the Will of Sh. Ram Chand was not placed on record for the last about 3 1/2 years from the date of institution of the suit. As per law the original documents were required to be filed alongwith the petition as per Order 7 Rule 14(1) CPC. Clause 3 of Order 7 Rule 14 CPC prohibits filing of such documents at later stage without the special leave of the court. The provision of Order 13 Rule 2 CPC under which the documents could be taken at later stage on record has been deleted from the CPC now.

In the application except mentioning the word "inadvertently" no other reason is disclosed why the original Will of Sh. Ram Chand or its copy could not be filed earlier despite petitioner was having its possession. The statement of petitioner was recorded in court on 20.5.2008 in which also this Will was referred to but even at that stage this document was not produced or sought to be exhibited. Counsel for the respondent in the cross examination of petitioner tried to challenge the correctness of this Will also. The file was inspected by counsel for the petitioner several time but at no stage earlier to moving this application it was informed to the court that inadvertently the original document could not be filed. At the time of recording of statement of PW-3 on 10.8.2009 this Will of Sh. Ram Chand was sought to be proved but petitioner could not do the same as neither the original nor the copy was lying on record. Counsel for petitioner then stated he will move an application for bringing on record this Will. Thereafter the case was adjourned to 5.10.2009 and 2.12.2009 but on those two dates also no such application was moved and at last this application was filed after a delay of about six months on 9.2.2010. Petitioner is unable to explain even this delay of six months which also can be treated as sufficient ground to reject this application.

Trial Court further observed;

Had the petitioner not in possession or power of this document then her application could be considered but despite knowledge and possession of the original Will of Sh. Ram Chand the non production of the same despite relying upon it in the petition clearly leads to the inference that petitioner did not want to bring on record the original Will at the appropriate stage and now when 6-7 witnesses of the petitioner has been examined she by moving this application is trying to fill up gaps and lacunas of her case which have come on record from the cross examination of her witnesses. Keeping in view the delay in moving this application, absence of any justified and sufficient reason as well as the negligent conduct of the petitioner, I find no ground to allow this application. Same is hereby dismissed with cost of Rs. 2000/- out of which Rs. 1000/- is payable to respondent No. 8 and remaining Rs. 1000/- is payable to other contesting respondents jointly.

After going through the impugned order, it is crystal clear that the petitioner had been in possession and power of the document since the time of filing of the probate petition but for reasons best known to her she did not produce the same. Moreover after seeking adjournments, the petitioner did not file any application before the Trial Court for placing this document on record. Moreover 6-7 witnesses of petitioner has already been examined as well as cross-examined and now if this application is allowed, great prejudice would be caused to the respondents.

Under these circumstances, I do not find any reason to disagree with the findings of the Trial Court. The findings given by the learned Trial Judge can by no stretch of imagination, be termed as illegal or irrational.

Hence, there is no merit in the present petition and the same is hereby dismissed with costs of Rs. 5,000/-.

Petitioner is directed to deposit the costs with Registrar General of this Court by way of cheque, within four weeks from today.

List for compliance on 13th August, 2010.

CM No. 11444/2010

Dismissed.

Copy of this order be sent to the trial court.