VIVEKANANDAN Vs. MEDDINI

JUDGEMENT

(1.) One of the main questions came up for consideration is with respect to the requirement of a replication in answer to a document relied on by the defendants in their written statement. A suit for partition was dismissed by the trial court on the ground that the beneficiary of Ext.A2 settlement deed was not made as a party to the suit and no challenge was raised either by amending the plaint or by submitting a replication against a Will relied on by the defendant. In appeal, the first appellate court set aside the decree and judgment of the trial court and allowed an amendment application to incorporate additional pleading denying the execution of Ext.B1 Will and remanded the matter back to the trial court, against which the defendant came up in appeal.

(2.) It is yet another example of delaying and defeating the administration of justice both in the hands of trial court and the first appellate court. Both the courts below had failed to appreciate the evidence adduced with respect to the due execution of Ext.B1 Will by examining one of the attesting witnesses as DW2. This would imply the meaning that the parties were well aware of the dispute involved in the suit and the documents relied on by the defendant, Ext.B1 Will. The attempt made to prove the due execution of Ext.B1 Will by examining one of the attesting witnesses was not even properly taken up either by the trial court or by the first appellate court, but an unnecessary remand was ordered by the first appellate court, that too, by allowing the parties to incorporate pleading by way of amendment against the execution and genuineness of Ext.B1 Will. It really amounts to putting the cart before the horse. Evidence was already adduced by examining one of the attesting witnesses in proof of due execution of the alleged Will. Then what remains is the appreciation of evidence and adjudication. But the first appellate court without adhering to the mandate under Rule 23, 23 A and 24 of Order XLI C.P.C. ordered a remand by setting aside the judgment and decree of the trial court.

(3.) It is submitted that the abovesaid amendment application for incorporating pleading challenging the due execution and genuineness of Ext.B1 Will is really unwarranted as the plaint pleading itself would be sufficient to answer the claim based on Ext.B1. Further, it is submitted that there is no need for submitting a replication or an amendment application disputing the due execution of Ext.B1, especially when the parties have adduced evidence fully knowing the dispute involved pertaining to Ext.B1.