Krishan Lal Gandhi v. Rajendar Prasad

1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 5.9.2012 by which the trial court at the stage of final arguments permitted the plaintiff/respondent to lead additional evidence to prove the registered Will dated 25.10.1988 executed by the father late Sh. Girdhari Lal in favour of the respondent/plaintiff inasmuch as the respondent/plaintiff is the owner of the suit property in terms of the Will. 2014:DHC:3458

2. No doubt, at the first blush it does appear that the additional evidence may have been permitted at the stage of final arguments, however, in the peculiar facts of this case, and considering that Code of Civil Procedure, 1908 (CPC) is handmaid of justice, and parties do make mistakes in conduct of their cases, I do not find that the trial court has committed any error in allowing the application for leading additional evidence to prove the Will.

3. The subject suit has been filed by the respondent/plaintiff against the petitioner/defendant/brother claiming possession of the suit property bearing No.11, Block No.5, Street No.2, Geeta Colony, Jheel Khuranja, Delhi. The property admittedly belonged to the father Sh. Girdhari Lal, and the respondent/plaintiff claims, as stated above, ownership on the basis of the registered Will dated 25.10.1988 executed in his favour by the father. The respondent/plaintiff had successfully filed two other suits against the two other brothers, and in which suits the Will was proved, and which other judgments have been filed and exhibited by the respondent/plaintiff in the court below. The respondent/plaintiff claims that he was given wrong advice that filing of such judgments would be sufficient to prove the Will, but, it thereafter transpired that decree in a suit will only bind the parties thereto and the Will having been proved in other proceedings will not help the respondent in the present case, and therefore the need for additional application to prove the registered Will dated 25.10.1988 executed by the father Sh. Girdhari Lal in favour of the respondent/plaintiff. 4(i) At this stage, I would like to state that powers under Article 227 of the Constitution of India are discretionary powers. Powers under Article 227 are not exercised if no injustice is caused by the impugned order although the order, even may be in one manner ‘illegal’. It is only in cases of grave injustice being caused that powers under Article 227 are exercised.

(ii) One additional reason for not interfering in exercise of discretionary jurisdiction under Article 227 of the Constitution of India is that if the impugned order is allowed to be set aside, valuable rights in an immovable property of the respondent/plaintiff will be lost, although people do make mistakes in conduct of their cases and therefore CPC is a handmaid of justice providing for remedial measures.

5. In my opinion, valid reasons of being not completely aware of the law that judgments in other suits passed against the brother where the Will was proved are not binding in the present case is a sufficient ground for allowing evidence to be led to prove the Will in this case. Of course, I may note that Section 13 of the Evidence Act, 1872 may possibly help the respondent with respect to other judgments too. Even by relying on the other judgments that Will stands proved, however respondent/plaintiff is justified in law in wanting to prove the Will in the present suit for possession filed against the petitioner/defendant.

6. During the course of hearing, I put it to the counsel for the petitioner/defendant that if the petitioner/defendant is interested may take sufficient time to vacate the suit premises or this Court is even inclined to consider awarding of costs of Rs.30,000/- caused for the delay in trial of the case, but, counsel for the petitioner/defendant on instructions states that petitioner does not want to take any of the two offers given in the Court on behalf of the respondent/plaintiff.

7. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs. JULY 23, 2014 VALMIKI J. MEHTA, J. Ne