Vijender Singh Tomer v. Sanjay Bhargava

1. The petitioner by way of the present petition under Article 227 of the Constitution of India assails and challenges the impugned order dated 13^^' March, 2013 passed by the learned Civil Judge (Central), Delhi.

2. The respondent/plaintiff filed a suit no. 488/2006 against the petitioner and the same is pending before learned Civil Judge, Delhi. Now the matter is fixed for respondent's evidence. In the meanwhile the petitioner filed applications under Order 26 Rule lOA CPC and under Section 45 Evidence Act. The said application was dismissed by the impugned order on the following reasons: "Perusal of record reveals that vide order dated 28.01.2004, the Ld. Predecessor of this court had held that the counsel for the defendant raised no objection before the court if the aforesaid application was allowed and therefore, Sh. SanjayBhargava was impleaded as a party. Perusal of the ordersheet also reveals that the defendant had stated in CM(hi) No.1245/2013 Page 1 of[2] 2013:DHC:7442 his reply that the Will was forged and fabricated and that tlie Will does not bear the signatures of the deceased plaintiff Since no objection at the time the application was allowed, it nieant that he was waiving liis riglit to dispute the si^atiues of the deceased plaintiffon the Will. Moreover, the application under Order 22 Rule J CPC has"already been allowed and allowing the present applications would mean review oforder dated 28.01.2004, which is not permit ed without any basis. The defendant has raised an objection to the signatures only to dispute the substitution of the plaintiff mthe present case and no substantive right of the defendant is affected by L said Will. Since the year, 2004, Mr.Sanjay Bhargava has been prosecuting the present case and suddenly, mthe end ofthe year 2012, the defendant wakes up and again objects to the signatures on the Will. Such kind of a practice is not appreciable and should be discouraged."

3. The learned counsel for the petitioner has not denied the fact that the impugned Will is aregistered Will. Probate has also been obtained mrespect of the Will. The said objections were raised by the petitioner when the respondent had filed an apphcation under Order 22 Rule 3 CPC for substitution of Mr. Sanjay Bhargava in place ofMs. Shobha Bhargava. At that time the petitioner had given his no objection and had stated that the application be allowed and Mr. Sanjay Bhargava be brought on record. In view thereof the application under Order 22 Rule 3 CPC was allowed. Filing of the fresh apphcation at the stage of recording of evidence would tantamount to review of the order dated 28^^ January, 2004. The same cannot be permittedagain.

4. In view ofthe above, the present petition is dismissed subject to cost of ^10,000/- to be deposited by the petitioner with Prime Minister Relief Fundwithin fourweeks today. rv a/- JUDGE DECEMBER 19, 2013