1 Under Article 227 of the Constitution of India, the petitioners – original plaintiffs of Civil Suit No. 3269 of 1998 have challenged the Order passed below Application Exhibit-106 filed by them for recasting of issues framed at Exhibit-41 in the said proceedings, which was rejected vide Order dated 17th July, 2006, by the learned Judge, Fast Track Court No.6, City Civil Court, Ahmedabad.
2 For deciding the present petition, certain facts are relevant which are as under:
2.1 Petitioner No.1, who is the widow of Madhavprasad Khandelwal, along with her sons i.e. petitioners No. 2, 3 and 4 were made defendants in Civil Suit No. 4428 of 1996 filed by the present respondents No.1 and 2 who are nephew of Mahdavprasad Khandelwal i.e. husband of the petitioner No.1 and father of petitioners No. 2 to 4. By filing Civil Suit No. 4428 of 1996, the present respondents No. 1 and 2 prayed for permanent injunction restraining the present petitioners from dispossessing them from a house known as “Bungalow No.8, Jay Mahavir Cooperative Society, Sahibaug, Ahmedabad City”, without due process of law, on the premise that, late Shri Madhavprasad Khandelwal had executed a Will dated 10.3.1970, by which he had bequeathed the said property to the plaintiffs of the suit (present respondents No. 1 and 2). A purshis was filed by the present petitioners in the said Civil Suit that they will not dispossess the present respondents from the said suit premises without following the procedure of law and, accordingly, the suit was disposed of by the Trial Court.
2.3 The petitioners, thereafter, filed the present Civil Suit No. 3269 of 1998 against the present respondents No. 1 and 2 and prayed for a decree against the defendants to hand over the actual and vacant possession of the suit premises described in the schedule, attached with the plaint being the legal heirs of deceased Madhavprasad Khandelwal. At this juncture, it is pertinent to note that the said suit was amended by Order below Application – Exhibit-7 and respondent No. 3 was joined as defendant No. 3 in the suit and a prayer was added in the plaint that the defendants shall be restrained from transferring the suit premises till the decree is passed in favour of the plaintiffs.
2.4 Pursuant to the summons issued by the Court, the respondents filed a written statement and by counter claim, it was prayed that, the court may be pleased to declare that the defendants are the legal owners of the suit premises since they have become the owners of the suit premises, pursuant to the Will executed by Madhavprasad Khandelwal and also prayed to declare that they have become owners of the premises by way of adverse possession of the suit premises since they are in possession of the suit premises for last more than 12 years.
2.5 On 8.9.2000, the learned Judge, City Civil Court No. 8, framed issues at Exhibit-41. The relevant issues are reproduced here-in-below:
(2) Whether the plaintiffs prove that the deceased Madhavprasad Khandelwal executed a Will dated 10.3.1970 in a sound and disposing state of mind?
(3) Whether the plaintiffs prove that the deceased was residing in the suit premise and he permitted the defendants and their family members together with him?
2.6 On 15.9.2000, Advocate appearing for the plaintiffs submitted an application Exhibit-42 and prayed that since the issue, with regard to the Will, has been framed by the Trial Court, which was required to be proved by the defendants, and in that circumstances, if and when the defendants examine themselves, the plaintiffs shall be permitted to re-butt the same, which was granted by the Trial Court on the same day.
2.7 On 8.9.2005, the petitioners-plaintiffs submitted an application Exhibit-96 and prayed that the Issue No.2 may be modified to the extent that the word “defendants” shall be inserted instead of the word “plaintiffs.” The said application Exhibit-96 was dismissed by the learned Trial Court vide its Order dated 26th September, 2005. The said order was challenged before this Court by way of filing a Special Civil Application No.22300 of 2005 by the present petitioners. By Oral Order dated 27th April, 2006, the same was disposed of as withdrawn. Since permission was granted to the petitioners-plaintiffs to file an application for recasting the issue as per the Order dated 27th April, 2006, another application Exhibit-106 was submitted before the Trial Court on the basis of certain grounds mentioned therein and a prayer was made to recast the Issues No. 2 and 3 in consonance with the pleadings of the parties and more particularly in view of the right of rebuttal given to the petitioners–plaintiffs by Order dated 15.9.2000. An additional prayer was also made to alter/amend the Issue No.3 for giving its effective meaning, by adding the words, namely, “to stay” after the words “their family members”. The said Application Exhibit-106 was rejected by the Trial Court by order dated 17th July, 2006, which is under challenge in the present petition, as stated here-in-above.
3 Mr. K.V. Shelat, learned Advocate, appearing for the petitioners has assailed the order passed by the Trial Court rejecting the application Exhibit-106 for recasting the issues as prayed in the said application on the ground that the learned Judge has erred in arriving at the conclusion that the Application Exhibit-
106 suffers from the principle of res judicata since similar application Exhibit-96 was rejected by the Trial Court which was confirmed by the High Court by way of an Order Order dated 27.4.2006 passed in Special Civil Application No. 22300 of 2005. He has submitted that a request was made by the Advocate for the petitioners before this Court when the said Special Civil Application No. 22300 of 2005 was heard, to withdraw the first Application – Exhibit-96 so as to enable them to file an appropriate application for recasting the issue, which was granted by this Court and, therefore, the question of res judicata would not be applicable in the present case.
4 He further contended that the petitioners are the only legal heirs of the deceased Madhavprasad Khandelwal. They have become the owners of the property by succession which belongs to late Shri Madhavprasad Khandelwal. The disputed property was in the name of Madhavprasad Khandelwal, in which the respondents were permitted to stay . Since the present respondents filed a Civil Suit No. 4428 of 1996 praying for permanent injunction on the basis of so called Will dated 20th March, 1990, executed by Madhavprasad Khandelwal, only at that time, the plaintiffs came to know about the so called Will, which was never executed by Madhavprasad Khandelwal. It was further submitted that the property is not an ancestral property and Madhavprasad Khandelwal had purchased the said property from his own sources. Since the petitioners did not want to commit any illegality by dispossessing the respondents without following due procedure of law, they filed the present suit on the premise that they are the owners of the property in view of the fact that they are the only legal heirs and representatives of late Shri Madhavprasad Khandelwal. Since the Civil Suit No.4428 of 1996 was filed by the respondents on the premise of so called Will, it was the duty of the plaintiffs to contend the same in their plaint, but the same is not required to be proved by the petitioners, as held by the Trial Court. He further submitted that by filing the written statement, it is contended in paragraphs 7, 8 and 9 that they have become the owners of the property pursuant to the Will executed by late Shri Madhavprasad Khandelwal and, accordingly, a decree has been prayed by the defendants to declare that the defendants have become owners of the suit premises pursuant to the Will executed by late Shri Madhavprasad Khandelwal. In view of this fact, the contentions raised in the plaint as well as in the written statement and in view of the order passed by this Court in Special Civil Application No.22300 of 2005, the Trial Court ought to have allowed the application Exhibit-106 and recast the issues as prayed by the petitioners – plaintiffs.
5 On the other hand, Mr. Pravin Panchal, learned Advocate, appearing for Mr. P.K.Jani, for the defendants, has supported the reasons assigned by the Trial Court. He submitted that the petitioners–plaintiffs submitted the application Exhibit-96 after the order of granting permission to rebut the case of the defendants below Exhibit-42 and that too after examining the plaintiff, which was dismissed by the Trial Court. He further submitted that this Court, while disposing of the Special Civil Application No. 22300 of 2005, has not quashed and set aside the order passed below Exhibit-96. Therefore, the Trial Court was right in arriving at the conclusion that the application at Exhibit-
106 was barred by principle of res judicata. He has submitted that since the plaintiffs - petitioners herein themselves have contended in their plaint that Madhavprasad Khandelwal had not executed any Will and the Will has been fabricated by forging the signature of deceased Madhavprasad Khandelwal, therefor it is their duty to prove the case that the Will was executed in a sound and disposing state of mind. Therefore, the Trial Court has framed Issue No. 2 in proper manner.
6 Heard learned Advocates appearing for the parties.
Now considering the first aspect about the principle of res judicata which has been accepted by the Trial Court while dismissing the Application Exhibit-106, certain part of the Order passed by this Court in Special Civil Application No. 22300 of 2005 is necessary to be examined , which is reproduced here-in-below:
“At this stage, Mr. K.V. Shelat submitted in view of the order passed by the learned Judge below Exh. 42, the defendants will have to prove the genuineness of the Will. He further submitted that in order to file appropriate application for recasting the issues regarding onus of the defendants to prove the Will, he seeks permission to withdraw Exh. 96 as well as the present petition.
Mr. Jani, learned advocate for the respondents objected to the same. However, when the petitioners want to withdraw this petition as well as original application Exh. 96 for making appropriate application to the Trial Court for recasting the issues regarding onus to prove the Will in view of the order passed below Exh. 42, in the interest of justice, permission to withdraw this petition and Exh. 96 is required to be granted.
In the result, the petitioners-original plaintiffs, are permitted to withdraw this petition as well as original application Exh.96. In case the petitioners prefer an application for recasting the issues, it is for the Trial Court to decide it in accordance with law. This Court is not expressing any opinion.”
7 Now considering the submissions made by learned Advocate appearing for the present petitioners that the present petitioners, who were the petitioners in the earlier petition, had sought for a permission to withdraw the application Exhibit-96 itself in order to file an appropriate application for recasting the issues. Though objected by the learned Advocate appearing for the respondents, the Court has granted permission to withdraw the petition as well as the original application Exhibit-96 with clear permission to the petitioners to prefer an application for recasting the issue, I am of the opinion that, the principle of res judicata would not be applicable in the present case. If application-Exhibit-
96 itself was permitted to be withdrawn by this Court, in my view, it would not be remain in existence on the record of the Trial Court and, therefore, if any order is passed below that application, the same would also automatically not remain on the record and, therefore, there is no question of res judicata barring the petitioners to prefer an application for recasting the issues. When this Court has apparently granted the present petitioners to prefer an application for recasting the issues, the Trial Court ought to have decided the application, which was subsequently filed by the petitioners – plaintiffs (Exhibit-106) on its own merits, but the Trial Court ought not to have gone into the decision passed below Exhibit-96, and ought to have decided the application on it's merits.
8 Now, considering the written statement as well as counter claim thereto, it appears that the defendants claim their rights over the property through a Will dated 10.3.1970 alleged to have been executed by late Madhavprasad Khandelwal in favour of them and have prayed that a decree shall be passed in their favour declaring them as the owners of the disputed property pursuant to the said Will. I am in agreement with the submission made by Mr. Shelat, learned Advocate, appearing for the petitioners that the plaintiffs had to state in the plaint about the earlier suit filed by the present respondents claiming their right over the property pursuant to the Will executed by late Shri Madhavprasad Khandelwal and, therefore, the Issue No.2 is required to be recast accordingly. The present petitioners, who are the plaintiffs, are not supposed to prove the Will dated 10.3.1970 that the same was executed in a sound and disposing state of mind as framed by the Trial Court. On the contrary, the respondents–defendants are relying upon the Will and have prayed for a decree on the basis of the Will, as stated here-in-above and therefore, it is their duty to prove the said Will that the same was executed by late Shri Madhavprasad Khandelwal in a sound and disposing state of mind.
9 In the present case, as stated here-in-below,the respondents have relied upon a Will dated 10.3.1970 and prayed for a decree in their counter claim, therefor, it is their duty to prove the same. The respondents–defendants, who are the propounder of Will, are bound to prove the same in accordance with law including under the provisions of the Indian Succession Act, 1925 as well as under the provisions of the Evidence Act.
As far as recasting of issues as prayed for by the plaintiffs – petitioners is concerned, I am in agreement with the principle of law which is pronounced by the Apex Court in the case of Sridevi & Ors. vs. Jayaraja Shetty & Ors. as reported at (2005) 2 SCC 784 by which it has been held that it is the duty of the propounder of Will to prove the same which he claims any right, title or interest over the movable or immovable property.
10 In view of the aforesaid above observations, I hereby quash and set aside the Order dated 17th July, 2006 passed below Application - Exhibit-106 filed in Civil Suit No. 3269 of 1998. The Trial Court is directed to decide the Application-Exhibit-106 in consonance with the pleadings of the parties as prayed for by the petitioners-plaintiffs. As far as this petition is concerned, this Court has not examined the rights, title or interest in the suit property of either party. The petition stands allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
(A.J. DESAI, J.) pnnair