Delhi High Court
Shri Jatinder Singh Bhatia vs State And Others on 22 August, 2008
Equivalent citations: AIR 2009 DELHI 54, 2009 (3) AJHAR (NOC) 859 (DEL), 2009 AIHC NOC 408, (2009) 1 CIVILCOURTC 681, (2008) 153 DLT 633, (2009) 1 PUN LR 3, 2009 (4) ABR (NOC) 708 (DEL.), 2009 A I H C 408, 2009 (3) AJHAR (NOC) 859 (DEL.), 2009 (3) AKAR (NOC) 438 (DEL.)
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IAs.No. 4494/2005, 10455/07, 10472/2007 &
10850/2007 in TEST CAS 37/1995
% Date of decision : 22.08.2008
SHRI JATINDER SINGH BHATIA .......Petitioner
Through: Mr S.P. Aggarwal, Sr Advocate with
Ms Meenu Aggarwal, Advocate.
Versus
STATE AND OTHERS ....... Respondent
Through: Mr Sandeep Sethi, Sr Advocate with
Mr Sandeep Sharma, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
RAJIV SAHAI ENDLAW, J
1. The petitioner seeks probate of the registered Will dated 15th May, 1994 of his father Shri Joginder Singh Bhatia. Under the said Will the petitioner is the only beneficiary. The four brothers and one sister of the petitioner have been impleaded as the respondents/close relatives. Objections have been filed by each of the four brothers of the petitioner. The sister of the petitioner has filed Testamentary Case No.42/1995 with respect to a Will dated 15th November, 1994 of the said Shri Joginder Singh Bhatia, as executor appointed under the said Will. IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 1 of 13
2. The Will dated 15th May, 1994, subject matter of this petition, is purported to be witnessed by Shri Ravinder Pal Singh and Shri Yoginder Singh Bhatia. The present petition has been verified, besides by the petitioner, by Shri Yoginder Singh Bhatia as one of the attesting witness to the Will. The petition was also accompanied by the affidavits of both Shri Ravinder Pal Singh and Shri Yoginder Singh Bhatia affirming that the Will dated 15th May, 1994 was executed by Shri Joginder Singh Bhatia in their presence and that they had also signed the said Will as attesting witnesses in the presence of Shri Joginder Singh Bhatia and in the presence of each other.
3. For the purposes of the disposal of these applications, it is also necessary to state that in the objections filed by each of the brothers of the petitioner, it is, inter alia, the case that the Will dated 15 th May, 1994 of which probate is sought by the petitioner is not the last Will of Shri Joginder Singh Bhatia; that the Will dated 15th May. 1994 has been revoked and cancelled by Shri Joginder Singh Bhatia by making his last Will dated 15th November, 1994 of which probate has been sought in Testamentary Case No.42/1995.
4. The Will dated 15th November, 1994 set up by the objectors and subject matter of testamentary case No.42/1995, inter alia, states as under :
"I, Joginder Singh Bhatia, s/o Shri Ladha Singh, r/o E-28, Rajouri Garden, New Delhi do hereby make this my last Will and testament on this 15th day of November, 1994, and hereby revoke all Wills and Codicils and other testamentary dispositions made by me hereto fore and specifically revoke my previous Wills dated 12.09.1980, 26.07.1987 and particularly Will dated 15.05.1994 which I executed as I had IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 2 of 13 no choice being under the influence of my youngest son Jatinder Singh and his wife Smt Satinder Kaur with whom I have been staying and declared this present Will to be my last Will. It will take effect after my death."
5. It is further the case in the objections that Shri Joginder Singh Bhatia had been prevailed upon, under undue influence and pressure to execute the Will dated 15th May, 1994; that the attesting witnesses to the Will dated 15th May, 1994 were procured by the petitioner to advance his design and were not independent witnesses and the said witnesses did not sign at the instance of late Shri Joginder Singh Bhatia. The respondent No.5 who has moved the applications under adjudication has in his objections also stated that Shri Joginder Singh Bhatia was under the influence of the petitioner and the petitioner taking advantage of the old age of Shri Joginder Singh Bhatia got the Will dated 15th May, 1994 executed by exercising undue influence and pressure on him; that the petitioner took prominent part in the execution of the Will; that Shri Joginder Singh Bhatia put his signatures on the Will dated 15th May, 1994 not of his own free will but under the undue influence of the petitioner; that the witnesses to the Will dated 15th May, 1994 are not independent witnesses and are very near relation of the petitioner.
6. Notwithstanding the aforesaid state of pleadings, while framing consolidated issues in the present case and in testamentary case No. 42/1995 on 15th July, 1999 issue No.1 was framed as under :
"Whether the deceased had executed Will dated 15th May, 1994?"
7. The petitioner examined the attesting witness Shri Ravinder Pal Singh as PW1 on 29th October, 2001 and the said witness was cross IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 3 of 13 examined by all the objectors. The second attesting witness Mr Yoginder Singh Bhatia was examined as PW2 and his cross examination was also concluded on 30th October, 2001. The petitioner examined another witness from the office of the sub Registrar concerned where the Will dated 15th May, 1994 was registered. The evidence of the petitioner was closed in affirmative on 15th July, 2002 and the objectors were ordered to file affidavits by way of examination in chief of their witnesses. The cross examination of the witnesses of the objectors has begun.
8. All the four applications have been filed by the respondent No.5. IA.No.10455/2007 has been filed under Order 18 Rule 17 CPC to re-examine PW2 Shri Yoginder Singh Bhatia. The respondent No.5 had earlier filed IA.No.4494/2005 for the same relief and which is also pending and which, on moving of IA.No.10455/2007, was sought to be withdrawn. IA.No.10472/2007 has been filed under Order 16 Rule 1 CPC to include the names of Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney in the list of witnesses of the respondent No.5 and to examine them as witnesses. It is, inter alia, the case of the respondent in the IAs No 10455/2007 and 10472/2007 that Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney were the neighbours of the respondent No.5 and were also closely associated with the deceased Shri Joginder Singh Bhatia; that in April, 2005 Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney informed respondent No.5 that they had met Shri Yoginder Singh Bhatia who was looking very depressed and upset and on inquiring informed that he was feeling guilty of making false deposition as attesting witness of the Will in the present case, in favour of the petitioner herein; that he had appended his signatures to the Will as desired by the petitioner, although there was no signatures on the IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 4 of 13 alleged Will of any other attesting witness; that upon learning so, the respondent No.5 also met Shri Yoginder Singh Bhatia who further informed that Shri Joginder Singh Bhatia never signed any Will dated 15th May, 1994 in his presence and that Shri Yoginder Singh Bhatia had affixed his signatures on the alleged Will dated 15th May, 1994 at the request of the petitioner in his own house and in the absence of Shri Joginder Singh Bhatia and other witnesses.
9. Respondent No.5 has alongwith the applications also filed the affidavit of Shri Yoginder Singh Bhatia in contradiction of his deposition before the court and the affidavits of Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney.
10. It is in the aforesaid state of affairs that the respondent No.5 wants to re-examine Shri Yoginder Singh Bhatia and to add the names of Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney in his list of witnesses. The petitioner has opposed the applications.
11. The IA.No.4494/2005 would not come in the way of the respondent No.5 specially since the same till the filing of IA.No. 10455/2007 was still pending. IA.No.4495/2005 is permitted to be dismissed as withdrawn and IA.No.10455/2007 filed for the same relief is entitled to be considered.
12. The senior counsel for the respondent No.5 admitted that PW2 Shri Yoginder Singh Bhatia is resiling from his earlier statement but urged that it is incumbent upon the court to record the statement which he now wishes to give and to thereafter weigh both the statements to determine as to on which occasion he lied. It was urged that a witness IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 5 of 13 who wants to resile from his statement given to the court cannot be shut out. Reliance was placed on S.S.S. Durai Pandian v S.A. Samuthira Pandian AIR 1998 Madras 323 in support of proposition that witness can be recalled under Order 18 Rule 17 on application of the party also and not only at the court's own instance and that the powers thereunder are very wide.
13. The senior counsel for the petitioner on the other hand drew attention to the order dated 7th September, 2006 in FAO(OS) 319/2005 preferred by the petitioner against the Order dated 22nd August, 2005 in the present proceedings and also to the cross examination of Shri Yoginder Sing Bhatia where he had stated that the objectors had approached him; he urged that the objector cannot be permitted to so win over the witness and to apply for their recall. It was also urged that under Order 18 Rule 17 CPC only the court can examine the witnesses and the parties have no power to examine or cross examine and for this reason also no purpose will be served in recalling the PW2 Yoginder Singh Bhatia. It was further urged that the relief claimed in IA.No. 10472/2007 was consequential to the claim in IA.No.10455/2007.
14. Order 18 Rule 17 of the CPC empowers the court to, at any stage, recall any witness and to put such questions to him as the court thinks fit. It is in view of this provision only that Order 18 Rule 17A of the CPC introduced vide the amendment Act 1976 was repealed by the Amendment Act of 1999 (Salem Advocate Bar Association v. Union of India AIR 2003 SC 189 and AIR 2005 SC 3353). The legislature felt that Rule 17A did not serve any purpose owing to existence of Rule 17 and in fact led to delays. The Division Bench of this court in National Agro Chemical Industries Limited v National Research IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 6 of 13 Development Corporation 118 (2005) DLT 653 has held that repeal of Rule 17A does not debar a party from recalling a witness.
15. Though the language of Rule 17 entitles the court only to recall witness but it has been held in Shankara Bhat v Bheema Bhatt AIR 1974 Kant 123 following Madhubhai Amthalal v Amthalal Nanalal AIR 1947 Bombay 156 and Sultan Saleh v Vijaychand AIR 1966 Andhra Pradesh 295 and in S.S.S. Durai Pandian (supra), with which judgments I respectfully concur that the litigant can ask the court to act under the said Rule. It has further been held in the aforesaid judgments and as is also obvious from a plain reading of Rule 17 that on such recall, only the court is entitled to put questions to the witness and not the parties; however the parties can suggest to the court the questions to be so put and the court under inherent powers can also permit the party to examine/cross examine such recalled witness. In this regard also see Kaliaperumal Naidu v Kuppuswami Naidu 1994 (2) MLJ 148 and Altaf Hussain v Nasreen Zahra AIR 1978 All 515 and Balkrishna Shivappa Shetty v Mahesh Nenshi Bhakta AIR 2003 Bom 293.
16 The provisions of Rule 17 have been permitted to be invoked to allow the parties to cover mistakes / lapses. The witnesses were permitted to be recalled for cross examination where application was moved immediately after conclusion of cross examination, owning to the main counsel having been not available for cross examination and cross examination having been conducted by a junior/associate counsel or where by mistake documents remained to be exhibited. Similarly the courts have also held that witnesses will not be permitted to be recalled to fill lacunas and not after the parties have availed of proper IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 7 of 13 opportunity to cross examine. The present case does not fall in the category of the respondent No.5 seeking to invoke the provisions of Rule 17 to cover any lapse or mistake. The respondent No. 5, after four years of cross examining, seeks to recall the witness to examine him as his own witness. In my opinion the same was not the purport of Order 18 Rule 17 CPC and, in any case, in the facts of the present case, the respondent No.5 is not entitled to do so.
17. The principle of finality attaches not only to final disposal of a lis but also to each segment of the proceedings. There is no reason not to apply the said principles for examination of witnesses also. Once a witness has been examined and discharged, he cannot be permitted to be recalled on the ground that the witness has changed his statement or has changed his mind or that he earlier did not tell the truth. Trial often spans over months/years and if such a practice is to be allowed / encouraged, it will lead to the parties to pursue the witness to depose in their favour not only before their appearance in the court but even after they have appeared and deposed. The Division Bench of this court in Jessica Lal murder case 135 (2006) DLT 505 has already noticed the trend of the witnesses turning hostile and held that courts must put an end to this kind of attitude of witnesses turning hostile in order to thwart the course of justice. In my view, we will be encouraging the trend of witnesses turning hostile if applications such as the present one are to be allowed.
18. Even otherwise, a litigant cannot invoke Order 18 Rule 17 CPC or the inherent powers of court to recall a witness who had earlier deposed against that litigant, to now depose in favour. Even under Section 154 of the Evidence Act, the declaration of the witness as IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 8 of 13 hostile is to be done immediately at the time of examination of the witness and cannot be permitted to be done long after the witness has been examined. Sarkar on Evidence (14th Edition Vol 2 at page 1980 by placing reliance on Mackintosh v Nobin Money Ind. Jur NS 160 has observed that a witness examined by the plaintiff cannot be recalled as witness of the defendant without leave obtained at the end of the first examination. In the present case the leave to recall has been filed after four years of examination and cross examination.
19. The Objector/applicant upon learning of the PW2 having deposed falsely in the present case, if genuinely aggrieved by such false deposition, would have taken appropriate action for the prosecution of PW2 for the offence so committed by him. Instead, the objector /Applicant has been pursuing these applications for the last three years, thereby derailing recording of evidence. Such conduct of the applicant shows that the witness is in truck with him and the recall of the witness is an artifice. The application thus appears to be mala fide.
20. S.S.S. Durai Pandian relied on by the Senior counsel for the applicant deals with recall of witness for a second cross examination which in that case was permitted on the court finding that the same was not prejudicial to the opposite party. It was however held that the same could be allowed only under special and extraordinary circumstances and with greatest care. The present case is different. The applicant now wants to examine in chief the witness whom he had earlier cross examined.
21. The practice of a party calling the opposite party as witness has even otherwise been deprecated by the courts as an unhealthy IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 9 of 13 practice. See Kaliaperumal v Pankajavalli (1999) 1 MLJ 97. In the present case the objector seeks to recall a witness examined by the petitioner and whom the objector had earlier cross examined, but now wants to examine the said witness as his own. In my opinion such practice also needs to be curbed and is equally unhealthy as a practice of calling the opposite party as a witness. As far back as in Ramjag Ahir v Emperor AIR 1928 Patna 203 it was held that a prosecution witness not called by the prosecution, cannot be permitted to be cross examined by the prosecution. Again, in Vadde Sanpangi v Beccani, MANU/AP 0329/1998 it was held that there is no provision in the CPC which permits a party to examine a witness of another party on his side. It was further held that such practice is not desirable as it might lead to endless examination of the same witness and lead to undesirable consequences in conducting the trial.
22. Even the facts of the present case do not entitle the respondent to recall PW2. As noticed above, the applicant/objector and in fact all the objectors have not really disputed the making of the Will dated 15th May, 1994. Their only objection to the same was that the same was procured by the petitioner by exercising undue influence. The signature of the deceased Joginder Singh Bhatia as well as of both the attesting witnesses on the same were also not disputed. It is not the objection that Shri Joginder Singh Bhatia had not signed in the presence of the witnesses or that the attesting witnesses had not signed in the presence of Shri Joginder Singh Bhatia or in the presence of each other. The objector/applicant is entitled to lead evidence only in consonance with its pleadings. The objector/applicant relies on a Will dated 15th November, 1994 of the deceased Joginder Singh Bhatia. The Will dated 15th November, 1994 itself admits the execution of the Will IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 10 of 13 dated 15th May, 1994. Thus, in my opinion, the only challenge to the Will dated 15th May, 1994 is of undue influence and of the petitioner having played a prominent role in execution of the same; otherwise the execution thereof by the deceased is not objected. If that be so, the objectors cannot be permitted to lead evidence (by recall of PW2) to disprove the due execution of the Will dated 15th May, 1994. It will tantamount to allowing the applicant/respondent No.5 to withdraw the admission and which, in relation to amendment of pleadings, has been held, cannot be permitted.
23. This court in S. Amarjit Singh v State AIR 1999 Delhi 33, in a testamentary case, declined to entertain arguments of which there was no basis in pleadings/objections to the grant of probate. This court relied upon Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. 1958 SCR 895 where it was held:
"The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of the parties on the basis of that finding. We have accordingly declined to entertain this contention."
IA.No. 10455/2007 is thus dismissed.
24. IA.No.10472/2007 is consequential to IA.No.10455/2007. The applicant/objector vide IA.No.10472/2007 seeks to examine Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney who will depose as to what Shri Yoginder Singh Bhatia had told him. Their evidence being IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 11 of 13 hearsay is in any case not admissible. Even otherwise, if Shri Yoginder Singh Bhatia is not to be recalled, there is no need to examine Shri Harpreet Singh Bedi and Shri Jagmohan S Sawhney who are sought to be examined only in support of reasons for recall of Shri Yoginder Singh Bhatia. Accordingly, IA.No.10472/2007 is also dismissed.
25. IA.No. 10850/2007 has been filed under Order 7 Rule 14 (3) of the CPC to place on record copies of records of Hamidia Hospital, Bhopal, M.P. where the other attesting witness to the Will Shri Ravinder Pal Singh is stated to be admitted on the date when he has purported to witness to the Will dated 15th May, 1994. The respondent No.5 states that he went to Bhopal in June, 2007 and met one Mr Mohinder Singh who informed that Shri Ravinder Pal Singh, on the date of execution of the alleged Will dated 15th May, 1994 was admitted to the said hospital; the respondent No.5/applicant claims to have thereafter obtained the records from the hospital. On inquiry I was told that Hamidia Hospital, Bhopal is a Government hospital.
26. Needless to state that no questions were put to PW1 R.P. Singh in his cross examination already effected on this aspect. Further, as above discussed, the execution of Will dated 15th May, 1994 stands admitted in the objections of the applicant/respondent No.5 as well as other respondents. The Will dated 15th November, 1994 relied upon by the respondents also admits the existence of Will dated 15th May, 1994. I, therefore, for the same reasons do not find the respondent No.5 entitled to file the said documents. A party cannot be permitted to file documents contrary to his pleadings. Cases remain pending for long and the parties cannot be permitted to enter into a roving and fishing inquiry and to lead evidence inconsistent with the case set up in their IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 12 of 13 pleadings. If the same were to be permitted, it will frustrate the very essence of pleadings. Accordingly, this application is also dismissed.
RAJIV SAHAI ENDLAW (JUDGE) August 22, 2008 M IA.Nos. 4494/2005, 10455/07, 10472/2007 & 10850/2007 in TEST CAS 37/1995 Page 13 of 13