Dismissed

Sardar Jaswant Singh Bedi v. Simranjeet Singh Bedi

Jharkhand HC15 Jun 2017WPC/1165/2017

Case brief

AI extract

What is this about?

Petitioner challenged the trial court's order marking a sale deed and appointing a handwriting expert under Section 71 of the Evidence Act. The High Court held that since the defendant admitted the sale deed's execution in the written statement, Section 71 was applicable, and the impugned order was not illegal or arbitrary, dismissing the writ petition.

What did the court decide?

Writ petition set aside; impugned order of the Addl. District (Sessions) Judge allowing marking of the sale deed as Ext.11 stands.

Sardar Jaswant Singh Bedi Vs Simranjeet Singh Bedi — Property and Title | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (C) No. 1165 of 2017

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-----

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Sardar Jaswant Singh Bedi son of late Sardar Amar Singh Bedi resident of Bedi Market, Main Road, Chas, PO & PS Chas District Bokaro Steel City

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Petitioner

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Versus

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Simranjeet Singh Bedi son of Sardar Paramjeet Singh Bedi resident of Bedi Market, Main Road, Chas, PO & PS Chas District Bokaro Steel City

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…… Respondents

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CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA

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----- For the Petitioner : Mr.Ajit Kumar, Senior Advocate For the Respondent : Mr. Rajiva Sharma, Senior Advocate

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---- Dated : 15th June, 2017

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The petitioner seeks for issuance of a writ certiorari for quashing the order dated 04.02.2017 whereby the Addl. District (Sessions) Judge 1^st Bokaro has allowed the petition of opposite partyrespondent herein, (plaintiff in court below) for marking the sale deed no.12761 dated 31.05.1973 as Ext.11 and for examination and submission of the report by the handwriting expert.

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2. Learned Senior Counsel, Mr.Ajit Kumar, appearing on behalf of the petitioner, while relying on the decisions reported in (2013) 14 SCC 1 [Bagai Construction Vs Gupta Building Materials Store] and (2016) 11 SCC 296 [Ram Rati Vs Mange Ram & Ors.] has submitted that the Supreme Court in the said cases has held that the document cannot be allowed to be marked as exhibit after conclusion of the evidence as this would amount to permitting the plaintiff to fill up the lacuna in the pleadings and evidence led by him.

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3. Learned counsel has argued that the burden of proof lies on the plaintiff and it cannot be shifted. It is contended that section 71 of the Evidence Act can be resorted to only when the attesting witnesses are not found or the documents are not proved in accordance with law. It is urged that it would be explicit from the impugned order that one of the attesting witnesses Mihir Kumar Singh did not appear for his examination despite valid service of notice and even on issuance of commission for his examination. The other attesting witness Shaktipad Dey stated on affidavit that the will was executed in his presence, however in further examination-in-chief he resiled from his earlier statement. That in

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absence of any proof of execution of the will, the court has erred in marking the sale deed as an exhibit and by ordering for the examination and submission of the report by the handwriting expert. That the court below has committed error in law by not adhereing to the mandate of sections 68 to 71 of the Evidence Act and the order is in the teeth of the settled proposition of law and the plaintiff-respondent cannot be permitted to adduce evidence in the absence of any pleading regarding the execution of the sale deed dated 31.05.1973 by the testator of the will hence, the impugned order is fit to be set aside.

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4. Per contra, Mr.Rajeeva Sharma, learned Senior Counsel for opposite party-respondent, has submitted that eloquence of the argument propounded by the learned counsel for the appellant is devoid of any merit in view of the well settled legal position that section 71 of the Evidence Act is all pervasive and enabling section and it is meant to lend assistance and comes to rescue of a party who has done his best to discharge the burden of proving a document. That it enables the party who has been let down by the witnesses and he has no other means save and except proving due execution of the will by bringing on record other evidence for exhibiting them. It is contended that it would be evident from para 28 of the written statement of the petitioner herein that they have admitted about execution of sale deed dated 31.05.1973. That the impugned order does not suffer from any illegality.

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5. Heard. On perusal of the written statement annexed with this writ petition, it is evident that the petitioner (respondent in court below) has admitted about execution of sale deed dated 31.05.1973. The trial court has discussed the evidence and the material facts. It has held that during cross-examination, the opposite party-petitioner has not specifically denied rather he has feigned ignorance about the sale deed. In fact, he has given evasive reply. It is well settled that section 71 is an enabling provision meant for lending assistance to a party when he is let down by the witnesses in discharging the burden, moreover it is evident that the petitioner in his written statement has admitted that sale deed dated 31.05.1973 was executed and the court below has taken note of this admission. Accordingly the decisions relied on by learned counsel for the petitioner has no bearing and are not applicable to the facts of the present case. Consequently, the impugned order does not suffer from any illegality

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or infirmity meriting any interference by this Court.

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This writ application, being devoid of any merit, stands dismissed.

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(Amitav K. Gupta, J.)

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dey

Sardar Jaswant Singh Bedi v. Simranjeet Singh Bedi

Case brief

What is this about?

What did the court decide?

Sardar Jaswant Singh Bedi v. Simranjeet Singh Bedi

Case brief

What is this about?

What did the court decide?

What the court decided

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