Delhi High Court - Orders
Mangat Ram Alagh vs State on 28 November, 2023
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th November, 2023
+ TEST.CAS. 28/2003
MANGAT RAM ALAGH ..... Petitioner
Through: Mr. Puneet Taneja, Mr. Manmohan
Singh Narula and Mr. Amit Yadav,
Advocates.
versus
STATE ..... Respondent
Through: Mr. Sanchit Seth and Mr. Nikhil
Sehrawat, Advocates for R-2(I) &
R-2 (II).
Mr. Rajat Aneja and Mr. Ajay Saroya,
Advocates for R2 (iii).
Mr. Rahul Malhotra and Ms. Shruti
Gupta, Advocates for R-4.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 9241/2023 (under Section 151 CPC on behalf of respondent No.2(iii) seeking Leave to Lead Evidence on behalf of the Respondents)
1. An application under Section 151 CPC has been filed on behalf of respondent No.2(iii) Anu Duggal seeking permission to lead evidence on behalf of the respondent.
2. It is submitted in the application that respondent No.2(iii) Anu Duggal was impleaded as legal heir of her deceased father respondent No.2 Shri Ashok Kumar Alagh vide Order dated 06.07.2022 of this Court. The TEST.CAS. 28/2003 Page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/12/2023 at 21:46:08 deceased father of respondent No.2(iii) had filed his Written Statement and had disputed the Will dated 09.09.1991 allegedly executed by Late Shri Harbans Lal Alagh and had claimed it to be a forged and fabricated document and it was also claimed that Late Shri Harbans Lal Alagh was not even the owner of the suit property No.2384, Faiz Road, Karol Bagh, New Delhi. The respondent No.4 has concluded his evidence on 07.03.2023 and she has been discharged. Thereafter, the applicant/ respondent No.2(iii) Anu Duggal filed her affidavit of evidence in support of the Written Statement filed by her deceased father.
3. It is submitted that the petitioner has taken an objection to the adducing of evidence by respondent No.2(iii) on the ground that respondent No.9 who is the real brother of the respondent had appeared in the Court on 29.09.2016 and had stated that he as well as their father did not intend to file any evidence. It is asserted that deceased father of respondent No.2(iii) was admittedly not present in the Court and respondent No.9, his son had no authority to make such statement on behalf of the father. The evidence of respondent No.4 has been concluded only on the previous date. A prayer is made that respondent No.2 (iii) legal heir of deceased respondent No.2 may be permitted to lead her evidence to prove the stand taken by her deceased father in his Written Statement.
4. Submissions heard.
5. A petition for grant of Probate has been filed on behalf of the petitioner, wherein after framing of issues the evidence is being led by both the parties. Though, vide Order dated 29.09.2016 the son respondent No.9 had made a statement that neither he nor his father respondent No.2 who was alive at that time, wants to adduce evidence, but the fact remains that TEST.CAS. 28/2003 Page 2 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/12/2023 at 21:46:08 the evidence by other respondents was being led by the parties. The respondent No.4 has concluded the evidence only on the previous date. In the interim the respondent No.2 has expired and respondent No.2(iii) Anu Duggal being the legal heir of respondent No.2, has been impleaded. She merely wants to lead evidence to corroborate the stand which was taken by the deceased respondent No.2 in his Written Statement claiming that the Will was forged and fabricated. She does not intend to lead any evidence which is contrary to the stand taken in the Written Statement originally by respondent No.2.
6. As has been rightly argued respondent No.9 the son had no Authority to make any statement on behalf of respondent No.2. Even if it is accepted that respondent had chosen not to lead any evidence despite challenging the Will in his Written Statement, the fact remains that the evidence was still being led and the respondent No.4 had concluded her evidence only on the previous date. The respondent No.2 (iii) the applicant who has stepped into the shoes of her deceased father only intends to lead evidence in consonance with the stand taken in the Written Statement. She having been impleaded after the demise of her father has a right to lead evidence in respect of the defence taken in the Written Statement. Even if it is accepted that the respondent No.2 through his son had stated that he did not want to lead evidence, but considering that respondent No.2(iii) who has been now impleaded as legal heir intends to lead evidence, the same cannot be denied.
7. Learned counsel for the plaintiff had placed reliance on Vigro Frozen Foods P. Ltd. vs. S.K. Gandhi and Anr. 2011 SCC OnLine Del 5051, wherein it was observed that when the legal heirs of deceased defendant is substituted, they did not get any independent right, title, or interest dehors TEST.CAS. 28/2003 Page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/12/2023 at 21:46:08 the claim of the original defendant. They simply step into the shoes of the deceased defendant and cannot be permitted to set up a new case or be allowed to file a fresh written statement.
8. A reference is also made to New Okhla Industrial Development vs. Pooran Singh And Ors. AIR 2004 All. 218, wherein various rules of procedure as defined under CPC for substitution of legal heirs of deceased defendant for impleadment of party have been listed.
9. The judgement Virgo Frozen (supra) is clearly distinguishable and not applicable as the evidence sought to be lead by respondent No.2 (iii) is only to prove the defence set up by deceased respondent No.2 and no new defence is sought to be set up.
10. The application is, therefore, allowed.
11. The affidavit of evidence of respondent No.2(iii) may be taken on record.
TEST.CAS. 28/200312. Be listed on 31.01.2024 before the learned Joint Registrar for concluding the evidence of respondent No.2(iii) and to conclude the entire evidence of the respondents expeditiously.
(NEENA BANSAL KRISHNA) JUDGE NOVEMBER 28, 2023 va TEST.CAS. 28/2003 Page 4 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 04/12/2023 at 21:46:08