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'0 U HIGH COURT OF DELHI
FAQ (OS) 513/2013
SMT RITA WADHWA ... Appellant
Through: MrAnil Sapra, SrAdvocate with Mr S.K. Gandhi, Ms Manjula Gandhi and
Ms Rupali Kapoor, Advocates
'0 U HIGH COURT OF DELHI
FAQ (OS) 513/2013
SMT RITA WADHWA ... Appellant
Through: MrAnil Sapra, SrAdvocate with Mr S.K. Gandhi, Ms Manjula Gandhi and
Ms Rupali Kapoor, Advocates
VERSUS
SHRI SANJEEV SARIN & ANR ... Respondents
Through: MrYakesh Anand with MrNimit Mathur, Advocates for the Respondent No.1.
. Mr Prateek Kumar for the Respondent No.2.
Through: MrYakesh Anand with MrNimit Mathur, Advocates for the Respondent No.1.
. Mr Prateek Kumar for the Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE VIBHU BAKHRU
13.12.2013 This appeal is directed against the order dated 03.09.2013 passed
J- by alearned single Judge ofthis court in lA No.12667/2013 in CS(OS)
140/2008. The said application had been filed by the appellant / defendant No.l under Section 65 of the Indian Evidence Act, 1872 read with Section 151, CPC seeking leave of the court to lead secondary evidence with regard to the alleged will dated 01.03.1999 allegedly left behindby Late Smt. Madhu RekhaSarin.
We have heard the learned counsel for the parties. The grievance ofthe appellant is that the learned single Judge rejected the application
2013:DHC:7356-DB f on the ground that since there was a dispute with regard to the very existence of the said will, the appellant / defendant No.l could not be permitted to lead secondary evidence relating to such awill.
On the other hand, the learned counsel for the respondent submitted that the application had been filed on behalf ofthe appellant / defendant No.l belatedly, particularly when the appellant / defendant
No.l had several opportunities to move such an application from 2008 onwards. Itwas contended bythe learned counsel for the respondent that the application was only adevice for delaying the proceedings.
The learned counsel for the appellant / defendant No.l submitted that the court has already fixed 31.01.2014 as the terminal date for concluding the evidence as per the Division Bench's order of
07.08.2013. It was submitted by the learned counsel appearing for the appellant that any secondary evidence that would be required for proving the existence of the will wouldbe concluded withinthat time frame. We are informed that the Local Commissioner has given dates beyond
31.01.2014 and, therefore, we direct the Local Commissioner to give dates before 31.01.2014 so that the direction given by the Division
Bench is complied with. Itis made clear that neither party shall take any adjournment in the course of recording the evidence. The learned counsel for the appellant states that for the purposes of leading the secondary evidence, they would be examining two witnesses, namely, Mrs Asha Kukreja and Mr S. Kukreja. Those witnesses shall be produced before the Local Commissioner for recording the examination- in-chief as well as the cross-examination on the very same day to be appointed bytheLocal Commissioner.
Accordingly, we set aside the impugned order, whereby the application for permission to lead the secondary evidence was rejected.
The appellant is permitted to lead the secondary evidence, as indicated above, and the fact that there is a dispute with regard tothe will, cannot come in the way ofaparty seeking to lead secondary evidence provided the conditions stipulated in Section 65 ofthe Indian Evidence Act, 1872 are met. In this case, we feel that those conditions are met. Therefore, wepermit leading ofthe secondary evidence.
The present appeal stands disposed of. In the first instance, the parties shall appear before the Local Commissioner on 18.12.2013.
Dasti.
BADAR DURREZ AHMED, J VIBHU BAKHRU, J DECEMBER 13,2013 dutt
HON'BLE MR. JUSTICE VIBHU BAKHRU
13.12.2013 This appeal is directed against the order dated 03.09.2013 passed
J- by alearned single Judge ofthis court in lA No.12667/2013 in CS(OS)
140/2008. The said application had been filed by the appellant / defendant No.l under Section 65 of the Indian Evidence Act, 1872 read with Section 151, CPC seeking leave of the court to lead secondary evidence with regard to the alleged will dated 01.03.1999 allegedly left behindby Late Smt. Madhu RekhaSarin.
We have heard the learned counsel for the parties. The grievance ofthe appellant is that the learned single Judge rejected the application
2013:DHC:7356-DB f on the ground that since there was a dispute with regard to the very existence of the said will, the appellant / defendant No.l could not be permitted to lead secondary evidence relating to such awill.
On the other hand, the learned counsel for the respondent submitted that the application had been filed on behalf ofthe appellant / defendant No.l belatedly, particularly when the appellant / defendant
No.l had several opportunities to move such an application from 2008 onwards. Itwas contended bythe learned counsel for the respondent that the application was only adevice for delaying the proceedings.
The learned counsel for the appellant / defendant No.l submitted that the court has already fixed 31.01.2014 as the terminal date for concluding the evidence as per the Division Bench's order of
07.08.2013. It was submitted by the learned counsel appearing for the appellant that any secondary evidence that would be required for proving the existence of the will wouldbe concluded withinthat time frame. We are informed that the Local Commissioner has given dates beyond
31.01.2014 and, therefore, we direct the Local Commissioner to give dates before 31.01.2014 so that the direction given by the Division
Bench is complied with. Itis made clear that neither party shall take any adjournment in the course of recording the evidence. The learned counsel for the appellant states that for the purposes of leading the secondary evidence, they would be examining two witnesses, namely, Mrs Asha Kukreja and Mr S. Kukreja. Those witnesses shall be produced before the Local Commissioner for recording the examination- in-chief as well as the cross-examination on the very same day to be appointed bytheLocal Commissioner.
Accordingly, we set aside the impugned order, whereby the application for permission to lead the secondary evidence was rejected.
The appellant is permitted to lead the secondary evidence, as indicated above, and the fact that there is a dispute with regard tothe will, cannot come in the way ofaparty seeking to lead secondary evidence provided the conditions stipulated in Section 65 ofthe Indian Evidence Act, 1872 are met. In this case, we feel that those conditions are met. Therefore, wepermit leading ofthe secondary evidence.
The present appeal stands disposed of. In the first instance, the parties shall appear before the Local Commissioner on 18.12.2013.
Dasti.
BADAR DURREZ AHMED, J VIBHU BAKHRU, J DECEMBER 13,2013 dutt
JUDGMENT