Malipatel Rajini Priya vs Mahadevi

These three Civil Revision Petitions arise out of a common order, dated 30.08.2023, in I.A.Nos.1260, 1261 and 1262 of 2023 in O.S.No.107 of 2015, on the file of the Court of the Junior Civil Judge at Zaheerabad.

Heard learned counsel for the petitioner and Sri B.Jithender, learned counsel appearing for respondent No.1 and perused the entire material on record.

After having heard the learned counsel on either side at length, this Court is in complete agreement with the reasoning given by the learned trial Court in the order under revision except to the extent of stating that even if the said applications were allowed and the proposed document is taken on record, the same would not help the petitioner in any manner either to prove or disprove the execution of Ex.B2-Will Deed.

The petitioner herein is defendant No.8 in the suit. The said suit was filed seeking partition of the suit schedule properties. The claim of the petitioner is basing upon a registered Sale Deed executed by defendant No.1, who, in turn, claims to have acquired right and title over schedule ‘A’ property basing upon a registered Will Deed, which is marked as Ex.B2. The petitioner herein is a stranger to Ex.B2. For whatever reasons, defendant No.1, who is the beneficiary of Ex.B2-Will, has not come forward to speak about Ex.B2. No doubt, there is a specific plea taken in the joint written statement filed by defendant Nos.1 and 8 about Ex.B2, as early as in the year 2017 and they could have taken appropriate steps to prove the said Will by examining the attesting witnesses of the said Will or otherwise. Admittedly, the attesting witnesses to the said Ex.B2-Will were not examined to prove Ex.B2-Will. The document i.e. now sought to be brought on record by filing the present applications is to show that the attesting witnesses of Ex.B2-Will have expired much prior to filing of the present suit. In order to prove a Will, it is necessary that the attesting witnesses or the scribe of the said Will are required to be examined, provided they are available.

Ex.B2 is a registered Will Deed and the petitioner herein is a stranger to the said Will. Non-examination of the attesting witnesses or the scribe of the said Will is fatal. By filing the present applications, the petitioner intends to show the non-availability of the said attesting witnesses. If it is a fact that the said attesting witnesses had expired much prior to filing of the suit itself, the question of examining the said attesting witnesses to prove Ex.B2-Will does not arise. Whether the said document which is sought to be brought on record is a genuine document or not and the contents of the same are true or not etc. are all matters to be looked into by the trial Court, if such document is allowed to be brought on record. As already stated above, the basis for the claim of the petitioner herein is the bequeath made under Ex.B2 in favour of defendant No.1 through whom the petitioner herein acquired the property shown in schedule ‘A’ of the suit schedule property.

As already noted above, the reasoning of the trial Court in the order under revision is quiet convincing and there is no explanation that is offered by the petitioner for the delay in taking steps to obtain the information with regard to death of the attesting witnesses for the past eight years. But, taking into consideration the fact that the petitioner herein is a third party to Ex.B2-Will and also the crucial nature of the document/information that is sought to be brought on record, this Court is of the considered view that the procedural lapses cannot be permitted to override the ultimate goal of rendering justice. In this connection, the reliance placed on a decision of the Hon’ble Apex Court in the case of Levaku Pedda Reddama and others v. Gottumukkala Venkata Subbamma and others 2022 LawSuit (SC) 739 relied upon by the learned counsel for the petitioner is relevant to refer, wherein the Hon’ble Apex Court held as under:-

“We find that the trial Court as well as the High Court have gravely erred in law in not permitting the defendants to produce documents, the relevance of which can be examined by the trial Court on the basis of the evidence to be led, but to deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice.

It is well settled that rules of procedure are hand-maid of justice and, therefore, even if there is some delay, the trial Court should have imposed some costs rather than to decline the production of the documents itself.

Consequently, the appeal is allowed. The orders passed by the trial Court and the High Court are set aside. The appellants-defendant Nos.2 to 5 are permitted to file the documents and to prove the same in accordance with law.”

Then, coming to the decisions relied upon by the learned counsel for respondent No.1 reported in the cases of M/s. Bagai Construction Thr. Its Proprietor Lalit Bagai v. M/s. Gupta Building Material Store AIR 2013 SC 1849, Dr. Rachakonda Srinivas v. Md. Hayath Bee and others C.R.P. Nos.451 of 2019 and batch, dated 06.03.2019 and in the case of Lakshmi and others v. Vitta Kristappa and others 2020 (2) ALT 364 (S.B.) are concerned, in the considered view of this Court, the said judgments have no application to the facts of the case on hand. No doubt, the procedure laid down in the Code of Civil Procedure (for short ‘the CPC’), as amended from time to time, is required to be strictly adhered to and the parties are also required to be diligent enough in prosecuting their respective cases by strictly following the time lines fixed under the CPC. But, in the peculiar facts of the case on hand, this Court is of the considered view that an opportunity be afforded to the petitioner herein to bring on record the document namely the certificate, dated 25.07.2023, issued by the Panchayath Secretary, Jharasangam Grama Panchayath, especially in the context of the fact that respondent No.1-Plaintiff took considerable time for adducing the evidence i.e. from 31.01.2020, the date on which the suit was posted for trial which went on till 20.03.2023. However, respondent No.1-Plaintiff can be compensated in terms of money by awarding reasonable costs.

In the circumstances, all the three Civil Revision Petitions are allowed setting aside the orders under revision and consequently, I.A.Nos.1260, 1261 and 1262 of 2023 in O.S.No.107 of 2015 are allowed by reopening of the evidence of DW1 only for the limited purpose of marking the certificate, dated 25.07.2023, issued by the Panchayath Secretary of Jharasangam Grama Panchayath as exhibit and for cross-examination thereon, subject to the petitioner paying an amount of Rs.12,000/- to respondent No.1-Plaintiff within a period of one week from the date of receipt of a copy of this order.

As a sequel, miscellaneous petitions, pending if any, shall stand closed. No costs.