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2025 Supreme(Kar) 285
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
VIJAYKUMAR A. PATIL, J.
Norbert D'Souza S/o Jeesie D'Souza - Appellant
Versus
Regina Lewis W/o Late Anthony Stanislaus Lewis - Respondent
Writ Petition No. 2123 of 2020
Decided On : 01-07-2025
Advocate Appeared:
For the Appellants : Thanima Bekal, Hareesh Bhandary T.
For the Respondents: K. Prasanna Shetty, T.I. Abdulla, Jayalingayya Mudenoormath, Arun S.
The court held that allowing belated examination of witnesses in a Will dispute is necessary for justice, affirming that litigants must prove their claims, and the interest of justice overrides procedural delays.
Headnote:(A) Civil Procedure Code - Order XVI Rule 1 and Section 151 - Writ petition seeking quash of the Trial Court's order rejecting application to examine additional witnesses in a suit involving the validity of a Will - The necessity of the witnesses to prove the Will was emphasized, despite the application being belatedly filed - Interest of justice necessitates granting the opportunity to examine such witnesses. (Paras 3, 6, 7)
(B) Burden of Proof - The petitioners carry the burden to prove ownership and execution of the Will, supported by family and medical witnesses, despite opposition from the respondents. (Paras 6, 7)
Facts of the case:
The petitioners allege ownership of property based on a Will executed by the deceased. The respondents contest this, denying the Will's validity and claiming sufficient evidence was already presented. (Paras 3-6)
Findings of Court:
The court acknowledged the necessity of the additional witnesses for a fair determination and deemed it appropriate to allow their examination subject to conditions. (Paras 5-6)
Issues: Whether the belated application for additional witnesses should be permitted given the circumstances of the case. (Paras 3-5)
Ratio Decidendi: The court held that allowing the witnesses to be examined aligns with the interest of justice, enabling the petitioners to fulfill their burden of proof regarding the Will's execution. (Paras 5-7)
Result: Writ petition allowed; impugned order set aside.
| Table of Content |
|---|
| 1. petition seeks to quash trial court's order. (Para 1 , 3 , 6) |
| 2. petition seeks to quash order on witness examination. (Para 2) |
| 3. respondent contests petitioner's late witness application. (Para 4) |
| 4. court allows late witness examination for justice. (Para 5 , 7) |
ORDER :
1. This petition is filed seeking for the following relief:
"Issue a writ of certiorari or any other writ quashing order Annexure 'A' dated 02.01.2020 made on I.A.No.XX in O.S.No.2/2011 by the Court of Additional Senior Civil Judge, Udupi."
2. Heard.
3. Smt. Thanima Bekal, learned counsel appearing for the petitioners submits that the petitioners have filed a suit seeking for the relief of declaration to declare that the petitioners are the owners of the suit schedule property based on the Will executed by one Anthony, brother of the petitioners, husband of the respondent No.1 and father of respondent Nos.2 and 3. In the said suit, the respondents filed a written statement, issues were framed and the petitioners examined the witnesses to prove the Will. It is submitted that the petitioners filed an application to furnish the list of witnesses they proposed to examine by seeking condonation of delay. The Trial Court, considering the same, rejected the said application solely on the ground that the application was filed belatedly at the stage of arguments. It is further submitted that the witnesses sought to be examined are very much necessary to prove the contents of the Will and the burden to prove the Will is on the petitioners. It is also submitted that as per the list of witnesses referred in the application, the first witness is the family member of the petitioners, the respondents and deceased Anthony, witness No.2 is the friend of deceased Anthony, witness No.3 is the employee working with deceased Anthony and defendant No.1, and witness No.4 is the brother of the petitioners and witness No.5 is the Doctor who treated deceased Anthony to demonstrate that there were strained relationship between the deceased Anthony and the respondent No.1. The said Anthony was in the care and custody of his sister and the entire bills with regard to his treatment were incurred by the other family members and he was residing separately from the respondent Nos.1 to 3. It is submitted that these witnesses are very much necessary to decide the controversy between the parties. However, the Trial Court, without appreciating the same, rejected the application solely on the ground that the application is filed after the closure of the evidence and the matter is posted for arguments. Hence, he seeks to allow the petition by providing one opportunity to the petitioners to examine the said witnesses to enable them to prove their case before the Court.
4. Per contra, Sri.Arun S., learned counsel for the respondent No.1 submits that the issues in the suit were framed on 12.12.2011 and within 15 days of framing of the issues, such an application would have been filed but the application was filed belatedly after more than 7 years without explaining a single line for the delay. It is submitted that sufficient evidence is adduced by the petitioners to prove the Will. Hence, seeking to examine further witnesses would not arise. The Trial Court has rightly considered the same and rejected the application. Hence, he seeks to dismiss the petition.
5. I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent No.1 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.
6. The petitioners filed O.S.No.2/2011 which is pending on the file of Additional Senior Civil Judge at Udupi. The relief sought in the said suit is for a declaration that the petitioners are the absolute owners and the said declaration is sought based on the alleged Will said to have been executed by one Anthony on 11.11.2009. The respondent No.1 is the wife and respondent Nos.2 and 3 are the chi
