Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 4614 of 2021 Petitioner :- Hari Prakash And 6 Others Respondent :- Anand Swaroop And 5 Others Counsel for Petitioner :- Vipul Pandey,Rahul Mishra
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioners.
By means of this petition under Article 227 of the Constitution of India, the petitioners have prayed for setting asiding the order dated 16.03.2019 passed by the trial court rejecting the application of the petitioners for comparison of signatures on the documents namely alleged Will and alleged sale deed, as it is stated to have been executed by the same person. The order dated 30.01.2020 confirming the same by the Additional District Judge, Ghaziabad in revision petition filed on behalf of the petitioners has also been challenged.
It has been strenuously argued by learned counsel for the petitioners that the petitioner who set up their case on the basis of Will alleged to have executed on 01.05.1993 though was initially denied in written statement but has come to be admitted in the statement of DW-1 recorded before the court below and hence, the document of Will ought to have been taken as admitted by the defendant no. 1 and the court ought to have allowed petitioner's application for comparison of signatures taking recourse of provisions of Section 73 of Indian Evidence Act, 1872.
Learned counsel for the petitioners has taken the Court towards the admission part of the statement recorded of the PW-1 in which it has come to be so stated that a Will was executed by Balbir Singh in favour of plaintiff nos. 1 to 6.
I have carefully gone through the plaint case of the petitioners, the written statement filed by the defendants and the statement of DW-1 Anand Swaroop in which it has come to be stated that a Will was executed by late Balbir Singh in favour of plaintiff nos. 1 to 6. What is interesting to notice is that, though in the statement of DW-1 twice it has come that late Balbir Singh had executed Will in favour of plaintiff nos. 1 to 6, but there is no date mentioned in the statements qua the Will, inasmuch as, the plaintiff having found the DW-1 to have admitted the Will, did not put a question in cross examination to further confirm as to whether the defendant no. 1 was referring to the Will claimed by the petitioner.
In fact, if such a question had been put, the statement recorded in the examination in chief would have stood corroborated. It has also come in the impugned order that earlier also some application had been moved by the plaintiff for comparison of signatures of late Balbir Singh upon the alleged Will and alleged sale deed but the said application also has come to be rejected on 24.02.2015 after recording of the statement of DW- 1.
In view of the above, I do not find it to be proper and appropriate to allow the application for comparison of signatures, more particularly when a Will has come to be denied in the written statement and in the DW-1's statement though knowledge of a Will was claimed, but the petitioners failed to attempt to further get it confirmed by putting a relevant question about the date of Will and the Will that had relied upon in the plaint during cross examination and hence I declined to interfere in the orders passed by the courts below. However, I clarify that observations made in this order are only for the disposal of this petition and may not come in the way of trial court in proceeding and deciding the suit on its own merit.
In view of the above, this petition is dismissed.
Order Date :- 25.10.2021 IrfanUddin