(1.) The petitioner is aggrieved by an order dated 1st August, 2008 whereby an application under Section 151 CPC made by the petitioner was dismissed by the Trial Court.
(2.) The brief facts relevant for purpose of disposing of this petition are that the petitioner on his application under Order 1 Rule 10 CPC was added as a defendant in an on-going suit between respondent and other defendants. One of the other defendant is Mr. Rajesh Kumar Wadhawan. He, according to the petitioner is his uncle whereas according to respondent he is father of the petitioner.
(3.) The plaintiff had filed a suit for partition and defendant no. 1 in his defence alleged that late Sh. Tirath Ram had left behind a 'Will'. This defence taken by defendant no. 1 was specifically dis-allowed by order of the learned ADJ dated 12th December, 1995 and the ADJ observed that defendant no. 1 was estopped from relying upon an alleged 'Will' of Sh. Tirath Ram as a defence to the suit in view of order in probate case No.141/1986. The defendant no. 1 had filed a Probate Petition being Probate No.141/1986 before the Probate Court in respect of the same 'Will' and when plaintiff (respondent herein) learnt about the Probate, he put appearance and took an objection against the Probate petition saying that the alleged 'WILL' was a forged document. Thereafter, defendant no. 1 withdrew the Probate Petition and a statement was made before the Court that he does not want to prosecute the case and case be dismissed as withdrawn. No liberty was sought to file fresh Probate case based on alleged 'Will'. In view of the statement made on 28th March, 1989, the Probate case was dismissed as withdrawn. The plaintiff brought this to the notice of the Court. The learned ADJ in view of Order 23 Rule 4 observed that defendant no. 1 cannot be allowed to bring out alleged 'Will' of late Sh. Tirath Ram. This order dated 12th December, 1995 of learned ADJ was challenged before this Court and was upheld by this Court. Thereafter, defendant no. 10, who is petitioner herein, moved this application under Section 151 and sought liberty to lead evidence to prove the same alleged 'Will'. He in his WS pleaded alleged 'Will' of late Sh. Tirath Ram, as was pleaded by defendant no. 1.