Allahabad High Court
Radhey Shyam Jaiswal vs Additional District Judge Barabanki ... on 9 July, 2010
Author: Rajiv Sharma
Bench: Rajiv Sharma
Court No. - 24 Case :- MISC. SINGLE No. - 1003 of 2010 Petitioner :- Radhey Shyam Jaiswal Respondent :- Additional District Judge Barabanki And Ors. Petitioner Counsel :- Adnan Ahmad Respondent Counsel :- C.S.C.,Ravindra Pratap Singh Hon'ble Rajiv Sharma,J.
Heard Sri Adnan Ahmad, learned Counsel for the petitioner and learned Standing Counsel for opposite parties No. 1 and 2 and Sri Ravindra Pratap Singh, learned Counsel for the private opposite parties.
By means of the instant writ petition, the petitioner has assailed the orders dated 22.12.2009 and 24.3.2009 passed by the opposite parties No. 1 and 2, as contained in Annexure Nos. 1 and 2, respectively, to the writ petition. It has also prayed that opposite parties may be directed to allow the petitioner's application and summon the original Will dated 27.11.1976 from the Court of Consolidation Officer, Nawabganj, District Barabanki and also permit him to produce the expert opinion as mentioned in the application.
Sri Adnan Ahmad, learned Counsel for the petitioner submits that Smt. Surendra Kumari filed a suit, which was numbered as Regular Suit No. 186 of 1982, for mandatory injunction against the petitioner on 8.9.1982 with regards to a house situate at village Barethi. Notice was issued and in response thereof, defendant/petitioner appeared and filed a detailed written statement on 31.9.1983, annexing therewith a certified copy of a Will dated 27.11.1976. On 3.2.1989, defendant/petitioner had filed an additional written statement on 3.2.1989. Thereafter, the suit proceeded and on 14.10.1993, the defendant/petitioner filed two documents before the trial Court; one was the original Will deed dated 27.11.1976 and the other document was a copy of the parivar register dated 20.1.1979. On 22.3.1997, the said suit was decreed ex parte against the petitioner. He further submits that an objection under Section 9 of Consolidation of Holdings Act was filed before the Consolidation Court between the same parties, who are in the regular suit No. 186 of 1982. Thereafter, on 25.5.1995, the petitioner withdrew the Original Will deed dated 27.11.1976 from the Civil Court and filed the same before the Consolidation Court. Subsequently, an application under Order IX Rule 13 of the Code of Civil Procedure was filed for setting aside the ex parte decree dated 22.3.1997, which was allowed and the suit was restored to its original number. On 22.1.2009, the petitioner moved an application for filing of certified copies of the statement of witnesses of the Will dated 27.11.1976, which were recorded in mutation proceeding and the same was also allowed.
Learned Counsel for the petitioner further submits that during the course of evidence, evidence was required to be proved the Will and as such, certain witnesses were to be examined but on account of influence of the plaintiff/private opposite parties, the witnesses did not reach on the fixed date and as such, the petitioner having no other option moved an application before the trial Court to summon the original Will in order to bring expert evidence as per the list of witnesses, to which the plaintiff/opposite parties filed an objection, stating therein that the application has been moved with great delay only in order to linger on the proceedings. The trial Court, vide order dated 24.3.2009, rejected the petitioner's application. Feeling aggrieved, the petitioner filed a revision, which was numbered as Civil Revision No. 38 of 2009 and the revisional Court, vide order dated 22.12.2009, dismissed the revision. Feeling aggrieved, the petitioner preferred the instant writ petition inter alia on the grounds that the Court below have failed to consideration that the original Will was filed by the petitioner before the trial Court on 24.10.1993, which was exhibited by the mutation Court on 27.11.1981 and as such, there was no delay in filing the Will in question.
Learned Counsel for the petitioner submits that the trial Court may be directed to summon the Will, to which learned Counsel for the private opposite parties has objection but finally he submits that some specific time may be provided so that the Original Will be summoned, to which learned Counsel for the petitioner has no objection.
In view of the above, the writ petition is allowed in part. The orders dated 22.12.2009 and 24.3.2009 are hereby set-aside. In case the petitioner deposits the requisite fee for summoning the Original Will from the Court of Consolidation Officer, Nawabganj, District Barabanki in the trial Court within one week from today, the trial Court is directed to pass appropriate order for summoning the original Will, expeditiously, say, within a period of one week from the date of receipt of a certified copy of this order along with the requisite fee. It is also provided that Consolidation Court will remit the Original Will after obtaining a certified copy of the same, expeditiously, say, within a period of fifteen days from the date of receipt of such request from the trial Court.
So far the expert opinion on the Original Will is concerned, it is open to the trial Court to proceed in accordance with law.
Order Date :- 9.7.2010 Ajit/-