Dismissed

Smt. Ramwati Devi v. Sher Singh (Since Deceased) and 6 Others

Allahabad HC6 Dec 2018A227/9027/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227 Challenging an appellate court order allowing summon of wills and sale deed under CPC, the High Court held the application was not barred by res judicata. It dismissed the petition finding no infirmity in granting additional evidence for substantive justice.

What did the court decide?

Writ petition against the appellate court order dismissing the application under Order 41 Rule 27 C.P.C. was dismissed.

Smt. Ramwati Devi Vs Sher Singh (Since… — Civil Procedure and Limitation | Allahabad HC (2018)

¶1

Court No. - 36

¶2

Case :- MATTERS UNDER ARTICLE 227 No. - 9027 of 2018

¶3

Petitioner :- Smt. Ramwati Devi Respondent :- Sher Singh (Since Deceased) And 6 Others Counsel for Petitioner :- Dinesh Kumar

¶4

Hon'ble Mrs. Sunita Agarwal,J.

¶5

The present petition is directed against the order dated 9.10.2018 passed by the appellate court in Civil Appeal No. 233 of 2011, whereby it has allowed the application under Order 41 Rule 27, filed by the appellant to summon original Wills in dispute from the revenue court and also the sale-deed dated 16.10.1976 executed in favour of the plaintiff. Both the documents have allegedly been issued by the same person.

¶6

The claim of the defendants/appellant in the application dated 19.3.2018 was that the executant of the Wills dated 19.3.1984, 16.12.1984 which have been challenged in Original Suit No. 175 of 1988, had also executed a sale-deed in favour of the plaintiff which is dated 16.10.1976. The original Wills are lying in the revenue court. The prayer was made to summon the Wills from the revenue court and to produce the sale-deed dated 16.10.1976, so that the signatures and thumb impression of the executant of the admitted document namely sale-deed dated 16.10.1976 and the Wills dated 19.3.1984, 16.12.1984 may be tallied.

¶7

The question as to the validity of the Wills, thus, can be determined.

¶8

The appellate court, having considered the said application, found that the controversy revolves around the genuineness of the Wills on the ground that it was executed by an imposter. It can be effectively determined after tallying the signatures or thumb impression of the executant with the admitted document, which has been executed in favour of the plaintiff of the instant suit.

¶9

The submission of learned counsel for the petitioner that similar applications moved before the trial court and the appellate court were earlier rejected and, therefore, the instant application Order 41 Rule 27 C.P.C. was barred by resjudicata, is misconceived

¶10

Order 41 Rule 27 C.P.C. gives ample power to the appellate court allow such additional evidence which it found necessary

¶11

for enabling it to pronounce judgment, effectively. It may also require a party to produce such evidence for the reasons to be recorded for doing so.

¶12

The provision, thus, confers discretionary power upon the first appellate court, circumscribed by the limitations specified in the Rule itself.

¶13

The object of bringing the evidence on the statutory provision is to do substantive justice, though the power has to be used sparingly; i.e. in exceptional circumstances. The requirement is thus limited to those cases, where it found necessary to obtain such evidence for enabling to pronounce judgment. The legal position as discussed above has been clearly laid down in Union of India Vs. Ibrahimuddin and another, 2012 8 SCC 148.

¶14

In the fact of the instant case,the executant of the Wills under challenge in the instant suit admittedly had executed a sale-deed in favour of the plaintiff on 16.10.1976. The appellate court has recorded that the defendant had moved an application before the trial court to summon the Wills in dispute from the revenue court. The trial court had rejected the said application for wrong reasons. Earlier application moved in appeal was not decided on merit.The conclusion drawn by the first appellate court is with a view for proper determination of the controversy between the parties.

¶15

For the aforesaid, no infirmity is found in the order impugned. The present petition is, accordingly, dismissed.

¶16

Order Date :- 6.12.2018 Pratima

Smt. Ramwati Devi v. Sher Singh (Since Deceased) and 6 Others

Case brief

What is this about?

What did the court decide?

Smt. Ramwati Devi v. Sher Singh (Since Deceased) and 6 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Reliance General Insurance Co. Ltd. Vs Arvind Kumar Sharma and Others

Bhartiya Mazdoor Sang U.P. Vs the Presiding Officer Industrial Tribunal (4) and 7 Others

Satyendra Kumar Vs the Family Court and Another

Smt. Jaishri Kesherwani Vs Ashish Kumar Gupta

Nalini Ranjan Srivastava Vs V.N. Rai and Another

Haji Imran and 3 Others Vs Smt. Kamar Zamani and 9 Others