LAXMI KANT YATI Vs. PUBLIC AT LARGE

JUDGEMENT

(1.) THE present appeal has been filed by the appellant under Sec. 299 of the Indian Succession Act (hereinafter referred to as "the said Act") against the order dt. 17.07.2003 passed by the District Judge, Sikar (hereinafter referred to as "the trial Court") in Civil Misc. Case No. 58/99, by which the trial Court has rejected the application of the appellant filed under Order XVI Rule 7 of C.P.C. In the instant case, it appears that the appellant -applicant had filed an application before the trial Court for obtaining the probate of will dt. 04.04.1989 allegedly executed by Ridhkaran in favour of the appellant. The appellant after examining about 7 witnesses had submitted an application under Order XVI Rule 7 to summon the witness alongwith the documents as prayed for in the said application. The said application has been rejected by the trial Court vide the impugned order.

(2.) AT the outset, it is required to be mentioned that the impugned order passed under Order XVI Rule 7 C.P.C. would not be appellable under Order XLIII, which deals with the appeals from orders. Though, it has been sought to be submitted by Mr. Ranjan, learned Senior Counsel for the appellant that the appeal would be maintainable under Sec. 299 of the Indian Succession Act, his submissions cannot be accepted, for the simple reason that under the said Section, the order made by the District Judge under the said Act is subject to appeal to the High Court in accordance with the provisions of C.P.C. applicable to the appeals, and since the order under challenge is not appellable under Order XLIII of C.P.C. the present appeal filed under Sec. 299 of the said Act could not be said to be maintainable in the eye of law. So far as the merits of the case are concerned, it has been observed by the trial Court that the application was sought to be submitted by the appellant at a very belated stage, when many witnesses were already examined, and that the person sought to be summoned with the documents, was none else than the husband of the appellant herself. Such an application filed by the appellant on extraneous consideration, has been rightly dismissed by the trial Court. The order passed by the trial Court being just and proper, this Court is not inclined to interfere with the same. The appeal being devoid of merits, is dismissed.