Delhi District Court
This Order Shall Dispose Of An ... vs N. Palanisamy (2011) 11 Scc 275 on 24 July, 2017
IN THE COURT OF SH. SANJAY KUMAR: ADDL. DISTRICT
JUDGE, (WEST)-02, TIS HAZARI COURTS: DELHI
PC No. 01/12
New No. 16018/16
Neelam Verma
vs.
State & Others
ORDER
24.07.2017
1. This order shall dispose of an application under Order XVIII Rule 17 read with Section 151 CPC filed on behalf the petitioner seeking to recall and re-examine the witness namely, PW2 Sh.P.K. Joshi. The brief facts stated in the application are as under:
2. It is stated that on 15.02.2017, the PW2 Sh. P.K. Joshi was recalled for cross-examination and after deposition he was discharged. On 19.02.2017, the petitioner visited the house of PW2 in the birthday function of his grand daughter and enquired how he got typed the Will in question in Rohini Court and also about the other circumstances. On asking, it is revealed to the petitioner that PW2 Sh. P.K. Joshi was handed over a copy of typed Will, one copy of newspaper dated 05.01.2008 through which the deceased had debarred his son and one hand written document (paper) in which the details of the other properties were mentioned by the deceased in the morning of 15.02.2011. The petitioner further came to know that actually deceased after handing over the aforesaid things had requested to PW2 to get typed Page no. 1/7 a Will after changes and the PW2 had acted upon the instructions of the deceased who was very near to PW2 in all aspects. On asking to the PW2 why he has not deposed all these facts at the time of deposition, he replied that he had brought the documents with him but when the court and other counsel did not ask then whey he should have been toled in the Court. The petitioner got frustration and asked to depose the true facts before the Hon'ble Court in respect of all facts and circumstances because the petitioner may be deprived of her legal right if the true facts will not come in the knowledge of the Court.
3. It is stated that the petitioner requested to PW2 to deposed the true facts before the Court but he is not ready for deposing the true facts before the court on the ground that he will not get any kind of harassment or disturbance to come again and again in courts. PW2 handed over the said original paper in which the detail of property are mentioned and the copy of the said typed will on which behalf he got typed the Will dated 15.02.2011. The petitioner was not in the knowledge of aforesaid facts and also about the documents. The examination of PW2 Sh. P.K. Joshi is essential for the proper adjudication of the present matter. In case PW2 Sh. P.K. Joshi is not allowed to be examined then the petitioner will suffer irreparable loss which cannot be compensated in terms of money as the petitioner was deeply attached with her father and mother.
4. The plaintiff seeks that appropriate directions be issued to summon Sh. P.K. Joshi S/o Sh. J.S. Joshi R/o Ranaji Page no. 2/7 Enclave, Najafgarh Road, New Delhi-110043 and earlier resident of C2C-12/90, Janak Puri, Delhi and appropriate directions be issued to recall and re-examine of the said witness.
5. The respondent no.2 filed unsigned reply to the application though supported by duly signed and attested affidavit. In the reply respondent no.2 denied the averments made in the application as wrong and incorrect. It is stated that it is wrong that the handwritten document was written and handed over to PW2 Sh. P.K. Joshi because the alleged testator of the Will was not in a position to move and talk due to his precarious physical condition as he was put on inopropic medicines i.e. life support medicines and as per the statement of PW2, the testator was being provided oxygen to breath properly, thus all the facts mentioned in the application are wrong and not tenable. It is stated that it is strange that there is mention of "phrase after changes" but it has not been stated what changes were to be made which shows untruthfulness and malafide allegations of the facts.
6. It is stated that the application is not maintainable because this is not the duty of this court and opposite counsel to enquire from the witness of the adversary what and which paper he has brought in the court, this it the duty of the party summoning the witness to get his true deposition and which is lacking in this case and now the petitioner is trying to fill the gap in order to fill in the lacuna and the same is not permissible under the law. It is stated that the detail of the property is already mentioned in the Page no. 3/7 alleged Will which has already been relied by the petitioner for getting the Will probated and the same is shrouded by suspicious, fictitious and fraudulent circumstances. The alleged testator was not in a position to move and talk with anyone and there was no occasion to give any documents to PW2 Sh. P.K. Joshi and the false documents which are placed before the Court along with this application seems to be created by the petitioner and PW2 in connivance with each other in order to deprive the respondents from their legal right in the property of the father of the respondent and petitioner. PW2 has already been examined exhaustively by the petitioner and now there is no question of suffering any irreparable loss in absence of re-examination of PW2, rather it will be more unjustifiable and inequitable to re-examine to fill up the lacuna. It is stated that the application is liable to be dismissed.
7. I have heard Ms. Geeta Luthra, Sr. Advocate and Sh. Rajeev Kumar, Counsel for the petitioner; Sh.Surinder Sharma, proxy counsel for Sh. L.D. Mual, Counsel for the respondent no.2 and perused the record.
8. Ld. Senior Advocate Ms. Geeta Luthra contended that PW2 Sh. P.K. Joshi appeared in the witness box and detailed cross-examination carried out by Counsel for the respondent no.2 on 15.02.2017. However, earlier opportunity was given but no cross-examination was done by Counsel for the respondent no.2 on 19.12.2016. On 15.02.2017 when PW2 Sh. P.K. Joshi was discharged, petitioner visited him in a birthday function of his grand daughter on 19.02.2017 and Page no. 4/7 enquire about the Will in question that how it was typed and about other circumstances. PW2 Sh. P.K. Joshi disclosed the facts and circumstances and handed over a typed copy of Will, one copy of newspaper dated 05.01.2008, whereby son of deceased was debarred and one handwritten paper. He submits that now PW2 Sh. P.K. Joshi may be allowed to be recalled for further examination, who is ready and willing to depose. The recalling of PW2 Sh. P.K. Joshi is essential as it will cause irreparable sufferance which cannot be compensated. She relied of judgment of K.K.Velusamy vs. N. Palanisamy (2011) 11 SCC 275.
9. On the other hand, Sh. Surinder Sharma, proxy Counsel for the respondent no.2 submitted that the present application is filed in order to create evidence after complete examination of PW2 Sh. P.K. Joshi. In the cross-examination conducted by the Counsel for the respondent no.2, full opportunity given to PW2 Sh. P.K. Joshi to apprise the true facts. Now by way of present application, he cannot be recalled because examination has already been completed in all respect. Ld. Counsel submitted that the application is liable to be dismissed and relied on judgment of Vadiraj Naggappa Vernekar (decased by L.Rs.) v. Sharad chand Prabhakar Gogate, AIR 2009 Supreme Court 1604.
10. I have considered the respective submissions of both the Counsels and perused the record. As per record, PW2 Sh. P.K. Joshi firstly appeared and examined on 19.12.2016 but Counsel for the respondent no.2 failed to Page no. 5/7 cross-examine. Thereafter, an application moved for allowing the cross-examination, same was allowed. PW2 was cross- examined on 15.02.2017 in detail. Now by way of present application, petitioner again wish to recall PW2 Sh. P.K. Joshi for examination along with some documents. It is pertinent to mention here that, the documents where the details of movable property such as fixed deposits and other income schemes and life insurance are mentioned, it does not bear any date and signatures. Similarly, the typed Will also neither signed nor bears any signatures. Lastly, newspaper cutting dated 05.01.2008, whereby respondent no.2 was debarred. It is pertinent to mention here that the plea of the petitioner is contrary to record. Firstly, petitioner herself proved the original copy of newspaper ex. PW1/1 when appeared in witness box, whereby respondent no.2 was debarred, therefore, it was well within the knowledge of the petitioner and she herself proved.
11. Now a new story has been developed about the visiting of the petitioner at the house of PW2 Sh. P.K. Joshi on 19.02.2017. It is pertinent to mention here that in the pleadings, there is no plea taken about the preparation of Will by deceased testator, details of FDRs, LIC policies and other saving schemes and typing of the draft Will. PW2 Sh. P.K. Joshi appeared in the witness box and he has all the opportunity to depose these facts in court. Now attempt has been made to fill up the lacuna and gaps which as per petitioner appeared after detailed cross-examination of PW2 Sh. P.K. Joshi. Law is well settled that witness cannot be recalled to fill up the lacunas after due diligent cross-
Page no. 6/7examination. There is no provision which permits a party to re-examine any witness to fill up the lacuna and production of documents that is why the legislature in its wisdom repealled the Order 18 Rule 17A. The judgment relied by Ld. Counsel for the petitioner K.K.Velusamy (supra) is distinguishable in the facts of the present case.
12. In view of my above discussion and observation, the application under Order 18 Rule 17 read with Section 151 CPC is dismissed.
Announced in the open court today the 24th July, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 24.07.2017 Page no. 7/7