LALTAPRASAD BALASHANKAR PANDE Vs. RAMSAJIVAN BALASHANKAR PANDE

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging an order passed below Exh.16 in Regular Civil Appeal No.109 of 2019 whereby 7th Additional District Judge, Surat vide an order dtd. 8/9/2021 rejected the application Exh.16 filed by the petitioner - original plaintiff praying for production of certified copy of a 'Will'.

(2.) Mr.Anukur Oza, learned advocate for the petitioner - original plaintiff submitted that though certified copy of a 'Will' produced before the trial Court, it found that there are no proof to establish that the said 'Will' is a certified copy issued by competent authority as it does not bear any seal or even note reflecting it being a certified copy. It is further observed that it does not bear the signature of even executant of a 'Will'. Therefore, he has submitted that certified copy of a 'Will' obtained from the office of the Sub-Registrar is now attempted to be produced by way of this application, which came to be refused. He has further submitted that it is the very same copy of 'Will' which is not believed by the Court to be certified copy and therefore, for pronouncing the judgment, the said certified copy of 'Will' is required without which judgment cannot be pronounced and therefore, though application is not mentioning any provision under which it is filed, it may be under Order XLI Rule 27 (1)(aa) or (b) of the Code of Civil Procedure, 1908 (for short, the Code') and therefore, it should have been permitted by the trial Court. In support of his submission, Mr.Oza, learned advocate for the petitioner - original plaintiff relied on a decision in the case of Sanjay Kumar Singh V/s. State of Jharkhand reported in (2022) 7 SCC 247 to submit that admissibility of an additional evidence under Order XLI Rule 27 of 'the Code' does not depend upon the relevancy of the issue on hand or whether the applicant had an opportunity for adducing such evidence at an earlier stage or not. Another decision in the case of Satnam Singh V/s. Malook Singh reported in AIR 2017 SC 3749 for a proposition that remand of a case passed by Competent Court giving opportunity to adduce the additional evidence with respect to 'Will' in mutation case is a discretionary and justified and therefore, setting aside thereof is held to be erroneous. Decision in the case of Jayaramdas and Sons V/s. Mirza Rafatullah Baig and Ors. reported in ( 2004) 10 SCC 507 is relied on for a proposition that certified copy of a public documents at variance and for that purpose alone comparing with the same when documents already on record, certified copies of a public documents should be permitted to be adduced as additional evidence under Rule 27 (1)(aa) of Order XLI of the 'Code'.

(3.) On the aforesaid submissions and precedents relied on by Mr.Ankur Oza, learned advocate for the petitioner- original plaintiff submitted that this petition be admitted and allowed.