Full Text
HIGH COURT OF DELHI
Date of Decision: 20th November, 2019.
ASHA SRIVASTAVA ..... Plaintiff
Through: Mr. Neeraj Malhotra, Sr. Adv. with Mr. Gagan Mathur & Ms. Cassandra Zosangliani, Advs.
Through: Mr. Sanjay Poddar, Sr. Adv. with Mr. Naman Tandon, Adv. for D-1&3.
Mr. Govind Kumar, Adv. for D-4.
JUDGMENT
1. The senior counsel for the plaintiff and the senior counsel for the defendants no.1 and 3 have been heard.
2. In this suit for partition, filed by the plaintiff on the premise of intestacy of the common predecessor (deceased), the defendants no.1 and 3 in their written statement set up a document dated 2nd February, 2002 as the validly executed last Will of the deceased. The plaintiff, in her replication to the written statement of defendants no.1 and 3, in paragraph 5 of the reply on merits, pleaded illness and medical treatment of the deceased in the year 1999 and again in the year 2007.
3. On the aforesaid pleadings of the parties, the following issues were framed on 25th April, 2017: 2019:DHC:6146 “(i) Whether the document dated 2nd February, 2002 is the validly executed last Will of the deceased Smt. Kaushalya Srivastava? OPD-1 to 5.
(ii) Whether Smt. Kaushalya Shrivastava was the owner of 1/5th share in plot of land ad measuring 12500 sq. yds. known as Ajanta Cinema Complex, Ajay Enclave Najafgarh Road, New Delhi as claimed by the plaintiff or the owner of 1/5th of half share in the said land as contended by defendants no.1 to 5? OPPr
(iii) Relief.” and the onus of the main issue being on the defendants no.1 and 3, the defendants no.1 and 3 were ordered to lead evidence first.
4. The defendants no.1 and 3 led evidence. It is informed that the other defendants did not lead any evidence. Thereafter the plaintiff led her evidence and in which, according to the senior counsel for the defendants no.1 and 3, the plaintiff also led evidence of alleged suspicious circumstances surrounding the execution of the Will. The defendants no.1 and 3 thus sought to lead evidence in rebuttal of the evidence led by the plaintiff, of alleged suspicious circumstances, and which was permitted by the Commissioner to whom commission was issued for recording evidence, inspite of objection of the counsel for the plaintiff.
5. The plaintiff immediately filed this application but during the pendency of the said application, the defendants no.1 and 3 examined two witnesses in their rebuttal evidence and on failure of the plaintiff to crossexamine the said witnesses, their evidence was closed.
6. The senior counsel for the defendants no.1 and 3 has contended that one of the witnesses examined in rebuttal evidence viz. Dr. O.P. Aggarwal was in fact mentioned by the plaintiff in her list of witnesses but the plaintiff in her evidence did not examine him and the defendants no.1 and 3 in their rebuttal evidence examined him. The other witness examined in rebuttal evidence is informed to be an advocate who was examined qua issue no.(ii) aforesaid. The senior counsel for the defendants no.1 and 3 further states that one Dr. Ram Sharma examined by the plaintiff also in his evidence deposed that Dr. O.P. Aggarwal was better qualified to depose.
7. The senior counsel for the plaintiff per contra has contended that since the onus of issue no.(i) was on the defendants, the defendants, after the evidence of the plaintiff, cannot lead any evidence in rebuttal.
8. I have considered the rival contentions.
9. Order XVIII Rule 3 of the CPC provides as under: “ORDER XVIII HEARING OF THE SUIT AND EXAMINATION OF WITNESSES
1. …….
2. ……..
3. Evidence where several issues.— Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.”
10. Following the rule of procedure laid down in the aforesaid Rule, the question of the defendants no.1 and 3 leading rebuttal evidence qua the validity of the Will, onus whereof was on the defendants no.1 and 3 and / or the defendants, does not arise.
11. However issue no.(i) as framed is only qua valid execution of the Will and not qua the other pleas in the replication of the plaintiff, to falsify the Will. Ideally, a separate issue qua the said pleas should have been framed, but was not framed. Had such an issue been framed, needless to state onus thereof would have been on the plaintiff and then the defendants, who led evidence first, would have had a right under Order XVIII Rule 3 of the CPC to lead rebuttal evidence with respect thereto.
12. Only for the said reason, I am of the view that the defendants no.1 and 3 should be permitted to lead rebuttal evidence in the present case inasmuch as the primary duty for framing the issues, though with the assistance of the counsels, is of the Court and no party can be permitted to suffer owing to mistake of the Court, in admitting which the Court has and should not have any hesitation. However owing to such mistake as aforesaid, no injustice can be caused to either of the parties.
13. The senior counsel for the plaintiff has referred to Surjit Singh Vs. Jagtar Singh AIR 2007 P&H 1 in support of his contention but in view of the peculiar circumstances aforesaid in the present case, the reasons aforesaid have been given for permitting rebuttal evidence.
14. During the course of hearing, the effect of the plaintiff not crossexamining the witnesses examined by the defendants in rebuttal has also been considered, with the senior counsel for the defendants no.1 and 3 contending that the failure to cross-examine was not owing to the pendency of the application but owing to the main counsel for the plaintiff not appearing before the Commissioner on the subject date. I have considered the said aspect also.
15. The senior counsel for the plaintiff has read out from the proceedings in the commission of the date when the witnesses in rebuttal were examined and which show that the colleague of the main counsel for the plaintiff who appeared before the Commissioner on the date when witnesses in rebuttal were examined, raised the issue of pendency of the application. Thus benefit of doubt has to be given to the plaintiff.
16. I therefore hold that the witnesses examined by the defendants in rebuttal were validly examined. Though the plaintiff, in the absence of any specific order from this Court, ought to have proceeded to cross-examine the said witnesses notwithstanding the pendency of the application but it is deemed appropriate to grant an opportunity to the plaintiff to now, if so desires, cross-examine the said witnesses.
17. The application is disposed of in above terms.
18. Before proceeding further, a word of caution. The commission issued for recording evidence, cannot adjudicate. Adjudicatory powers of the Court were/are not delegated and cannot be delegated and once there was a dispute, whether the defendants no.1 and 3 were entitled to lead rebuttal evidence or not, the Commissioner was not authorized to allow or disallow rebuttal evidence. The Commissioner, in doing so, exceeded his mandate.
19. The defendants are not willing to bear the fee of the commission to be issued for recording cross-examination aforesaid, stating that in the earlier round, the entire expenses were borne by the defendants.
20. The counsel for the plaintiff states that the cross-examination be recorded before the Joint Registrar.
21. The cross-examination of Dr. O.P. Aggarwal and Mr. Abhay Singh, Advocate examined by the defendants no.1 and 3 be recorded before the Joint Registrar.
22. List before the Joint Registrar on 2nd December, 2019 for scheduling the dates for cross-examination of the said witnesses.
RAJIV SAHAI ENDLAW, J. NOVEMBER 20, 2019 ‘gsr’