BOPPANDA N KUSHALAPPA Vs. BALEYADA K CHERAMANA

JUDGEMENT

(1.) The defendant in O.S.No.7/2006 on the file of the I Additional District and Sessions Judge, Madikeri has filed this petition challenging the correctness of an order dtd. 21/3/2024 passed on an application (I.A.No.XXXI) filed by him under Order XIII Rule 10 read with Sec. 151 of Civil Procedure Code.

(2.) The respondent No.1 initiated proceedings in P & S.C.No.2/1996 for grant of probate of a Will dtd. 3/5/1995 allegedly executed by Smt. Boppanda Boji Kalappa who died on 14/5/1995. The proceedings in P & S.C.No.2/1996 was transferred to the Civil Judge (Sr.Dn.), Kodagu, in view of a notification issued by this Court dtd. 12/3/1979. Later, the Court of the Senior Civil Judge, Madikeri granted a probate in terms of an order dtd. 28/1/2017 which came to be challenged before the District Court in R.A.No.11/2017. The District Court referred certain questions under Order XLVI Rule 1 of Civil Procedure Code for consideration by this Court, which was taken up in C.R.C No.1/2019. A Division Bench of this Court in terms of the order dtd. 22/4/2022, held that the notification issued by this Court dtd. 12/3/1979 empowered the Senior Civil Judges to issue succession certificate under Part X of the Indian Succession Act, 1995 and not a probate of a Will. Consequently, it held that proceedings initiated by the Senior Civil Judge were all without jurisdiction and therefore, directed the District Court to commence proceedings a fresh. After proceedings before the District Court commenced, series of applications were filed by the petitioner herein for recalling PW.1 for further evidence to permit production of additional documents and additional list of witness and also for appointment of a Commissioner i.e., hand writing expert to compare the signatures found on the disputed Will with the sale deed dtd. 13/3/1968. The said applications were rejected by the District Court in terms of an order dtd. 7/11/2023 which was thereafter challenged before this Court in W.P.No.27801/2023 and companion writ petitions which were dismissed in terms of the order dtd. 16/2/2024. One of the grounds on which, application filed for appointment of a hand writing expert was rejected was that the documents sought to be compared with were not contemporaneous with the Will dtd. 3/5/1995. Later, the petitioner filed an application (I.A.No.XXXI) under Order XIII Rule 10 read with Sec. 151 of Civil Procedure Code to summon from the registry of this Court, the Term Deposit Applications submitted by Smt. Boppanda Boji Kalappa to Canara Bank, Napoklu dtd. 14/9/1993, 2/3/1994, 16/7/1994, 1/3/1995 and 19/9/1994 which were marked as Exs.D1, D2, D3, D4 and D5 in O.S.No.5/1998 which was pending in appeal before this Court in RSA No.943/2013. The said application was contested by the respondent No.1 herein on the ground that the application was designed to protract the proceedings and there were no bonafides in the application so filed. It was also contended that the petitioner had stated in his crossexamination that he was in possession of signatures of Smt. Boji Kalappa, but did not chose to produce the said signatures, but had filed the application to fish out the evidence which is impermissible in law. It was also contended that the respondent No.1 was not a party to O.S.No.5/1998 and therefore, comparing the documents which were marked in O.S.No.5/1998 with the Will dtd. 3/5/1995 was unwarranted. With these and other contentions, they claimed that the application did not merit consideration and prayed that the same be rejected.

(3.) The Trial Court in terms of the impugned order rejected the application on the ground that the case had reached its final stage and the application was filed when the case was partly argued by the counsel for the respondent No.1 and when it was adjourned for further arguments. It held that no attempt was made by the petitioner to file the application at the earliest point in time and that there was considerable delay on the part of the petitioner. It also noted that timelines were fixed by this Court in C.R.C.No.1/2019 and that it was bound to comply the directions issued therein as well as the directions issued in W.P.No.27801/2023. Consequently, it held that nothing prevented the petitioner to obtain certified copies of the documents in O.S.No.5/1998 for production in the case for the convenience of the Court to verify the signatures found thereon with the signatures found on Will dtd. 3/5/1995.