VASUDEV MANGAL Vs. ANAR DEVI

JUDGEMENT

(1.) THE present writ petition filed under Arts. 226 and 227 of the Constitution of India is directed against the order dt. 30.07.2013 passed by Additional Civil Judge (Senior Division), Beawar (hereinafter referred to as 'the Trial Court') in Civil Suit No. 64/88 (69/93), whereby the Trial Court has dismissed the application of the petitioner - defendant filed under Secs. 45, 47 and 73 of the Evidence Act. Short facts, giving rise to the present petition, are that the original plaintiff Smt. Anar Devi had filed the suit against the petitioner -defendant seeking possession and mesne profit in respect of the property in question. The Trial Court, after framing the issues, proceeded with the trial of the suit and during the pendency of the suit, the original plaintiff Smt. Anar Devi expired on 26.05.2003. Subsequently, the present respondent No. 1/1 Mukesh was substituted in place of the original plaintiff Smt. Anar Devi on the basis of the Will dt. 26.01.2003 produced by the said Mukesh. It appears that the petitioner thereafter made an application for amendment in the written statement for challenging the execution of the alleged Will in favour of the said Mukesh, who happened to be the son of original plaintiff Smt. Anar Devi. The said application of the petitioner came to be rejected by the trial Court vide the order dt. 07.01.2013, against which Civil writ Petition being No. 1571/2013 was filed by the petitioner before this Court. The said writ petition came to be allowed vide the order dt. 01.08.2013, permitting the petitioner to amend the written statement, as prayed for. It appears that thereafter the petitioner submitted an application for production of the original of the alleged Will on record. The said Will having been produced by the respondent, the petitioner submitted an application for sending the said alleged Will to the FSL for obtaining the expert's opinion in view of Sections 45, 47 and 73 of the Evidence Act. The said application has been rejected by the trial Court vide the impugned order, against which the present petition has been filed.

(2.) IT has been sought to be submitted by the learned counsel Mr. Raj Kamal Gaur for the petitioner that after the writ petition having been allowed by this Court, the petitioner had challenged the genuineness of the said Will by amending the written statement as the said Will was forged one and the respondent Mukesh had no right to prosecute further with the suit on the basis of said Will. He also submitted that there were other legal heirs of the original plaintiff Smt. Anar Devi, who have not been implead as party -plaintiffs in the suit. According to him, since the petitioner -defendant challenged the genuine -ness of the Will, it was incumbent on the part of the trial Court to send the said Will to the FSL for examining the genuine -ness of the signature of original plaintiff Smt. Anar Devi, and that the said application was required to be allowed by the trial Court, in the interest of justice.

(3.) HAVING regard to the submissions made by the learned counsels for the parties and to the documents on record, more particularly the impugned order passed by the trial Court, it transpires that the application for sending the Will in question to FSL for examination was filed by the petitioner at the stage when the respondent -plaintiff had already examined the witnesses and the petitioner had also cross -examined the said witnesses. It is not disputed that the respondent Mukesh was substituted as the legal heir of the original plaintiff Smt. Anar Devi in the suit as back as on 10.11.2003, and the said order of the trial Court has remained un -challenged. It is also not disputed that as on today, there was no issue framed by the trial Court with regard to the genuine -ness of the Will in question produced by the respondent Mukesh allegedly executed by the original plaintiff Smt. Anar Devi. The genuine -ness of the Will being not the subject matter of the suit, and the suit having been filed by the original plaintiff Smt. Anar Devi on the basis of title, the trial Court has rightly rejected the application of the petitioner for sending it to the FSL vide impugned order. There is no illegality or infirmity in the impugned order passed by the trial Court and, therefore, the present writ petition deserves to be dismissed, which is accordingly dismissed.