NEENA V. PATEL Vs. JYOTSNABEN P. PATEL

JUDGEMENT

(1.) BOTH the writ petitions are heard together and are being disposed of by this common order. However, for the purposes of this order, facts are taken from W.P. No. 2255/2013. These writ petitions under Article 227 of the Constitution of India are directed against the order dated 19.10.2012 passed in Probate Case No. 7/2008 by the IV Additional District Judge, Jabalpur. The petitioner herein is non -applicant in the aforesaid Probate Case and respondent No. 1 herein is the applicant seeking probate of a Will of late Parmanand Bhai Patel. The facts giving rise for filing of the present petition in short are that on an application made by the respondent No. 1, seeking probate of a Will dated 23.12.1991, the proceedings were initiated. Certain objections were filed by the petitioner and other respondents and the matter was taken up for hearing. The main contest was with respect to the effect of the Will said to be executed by late Parmanand Bhai Patel way back in the year 1991 and as to the entitlement of receiving the benefits. The matter so proceeded and ultimately for the purpose of recording of evidence, at the relevant time since the respondent No. 1 was not in a position to travel from Mumbai to Jabalpur, an application was made for appointment of a Commissioner. The Commissioner visited the place of residence of respondent No. 1 and at the time of recording of evidence, certain documents were sought to be produced, which were objected to by the petitioner. The matter was referred to the Court but the said documents were taken on record by the Commissioner.

(2.) WHEN the matter reached to the Court since the respondent No. 1 was in a position to travel by Air to Jabalpur, it appears that on an application raising objection with respect to taking documents on record, an order was passed by the Trial Court and such an objection raised by the petitioner was rejected. However, said order was not challenged but analogous writ petition was filed raising certain objection with respect to initiating the proceeding for cross -examination of respondent No. 1. When the matter was in seizin before this Court, a prayer was made for adjournment of the proceedings before the Trial Court on the ground that the writ petition was to be heard by this Court and, therefore, proceedings for cross -examination of respondent No. 1 may be adjourned. It is noteworthy to state that the hearing of the writ petition itself was fixed on the date on which the cross -examination of respondent No. 1 was to be conducted in the trial Court. On the prayer made by the Counsel for the petitioner herein, the Trial Court put the matter for hearing post lunch break and thereafter since the hearing of the writ petition could not be concluded, it appears that the said fact was brought to the notice of the Trial Court but the same was not accepted and right to cross -examine the respondent No. 1 available to the petitioner was closed, therefore, such an order is challenged in the present writ petition and this is how both the writ petitions are listed for analogous hearing.

(3.) PER contra it is submitted by learned Counsel for respondent No. 1 that it is not now open to the petitioner to say that her right was wrongly closed by the Trial Court to cross -examine the respondent No. 1. In fact right from the date of initiation of proceedings, knowing fully well that the respondent No. 1, applicant in the probate proceeding, is an aged lady, all attempts were made to linger on the proceedings so that ultimately rightful order could not be passed in favour of respondent No. 1. Further it is contended that the order impugned itself assign the reason why the right to cross -examine the witness was closed and why the matter was posted for completion of the cross -examination by other non -applicants. Thus, it is contended that the right of cross -examination cannot be granted to the petitioner and rightful orders have been passed by the Trial Court which need not be interfered by this Court.