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2013 Supreme(Bom) 2117
High Court of Judicature at Bombay
R.D. DHANUKA, J.
Trustees Co. Ltd.
Versus
Ashok Raju Shetty & Others
Chamber Summons No. 126 of 2012 In Testamentary Suit No. 46 of 1997 In Testamentary Petition No. 308 of 1997
Decided On : 18-10-2013
For the Applicant:Shailesh Shah, Sr. Advocate along with Mamta Sadh i/by Zohair & Co., Advocates.
For the Plaintiffs:Milind Shewale, Advocate. For the Defendants:D1 to D3, U.J. Makhija, Sr. counsel i/by Ms. Manju Rajbhar, Advocate.
The court has ample power to permit the party to lead additional evidence before the suit is finally heard, and even the appellate court may allow any witness to be examined for any substantial cause.
Headnote:
Chamber Summons - Examination of Witness - Code of Civil Procedure, 1908 - Section 151, Order 18 Rule 2, Order 41 Rule 27 - The court allowed defendant nos. 4 and 5 to examine Dr. R.V. Adyanthaya with liberty to defendant nos. 1 to 3 to cross-examine the witness. Defendant nos. 1 to 3 were also permitted to examine any witness with liberty to the plaintiff and defendant nos. 4 and 5 to cross-examine such witness. Defendant nos. 4 and 5 were allowed to file an affidavit in lieu of examination in chief of Dr. R.V. Adyanthaya within four weeks from the date of the order. The chamber summons was disposed of in the aforementioned terms.
Fact of the Case:
Defendant nos. 4 and 5 sought permission to examine Dr. Shri. R.V. Adyanthaya, who had allegedly examined the deceased at the time of the execution of the Will. The petitioners, appointed as executors of the Will, filed a testamentary petition praying for probate of the Will. Defendant nos. 4 and 5, claiming to be beneficiaries under the Will, supported the petitioners. The court observed that the plaintiffs had failed to prove the document of Will as having been duly executed by the testator and directed the matter to be placed on board for arguments. Plaintiff/petitioners filed a chamber summons praying for recalling of the attesting witness, which was allowed by the court.
Finding of the Court:
The court allowed defendant nos. 4 and 5 to examine the doctor and permitted defendant nos. 1 to 3 to examine any witness. The court emphasized the interest of both parties and the principles of justice and equity in allowing additional evidence at this stage of the proceedings.
Issues: The main issue was whether defendant nos. 4 and 5 should be permitted to examine the doctor who had allegedly issued a certificate on the Will after examining the testator, and whether defendant nos. 1 to 3 should be allowed to cross-examine the witness.
Ratio Decidendi: The court held that under section 151 of the Code of Civil Procedure, it has ample power to permit the party to lead additional evidence before the suit is finally heard. The court also cited Order 41 Rule 27(1)(b), emphasizing that even the appellate court may allow any witness to be examined to enable it to pronounce judgment or for any substantial cause.
Final Decision: Defendant nos. 4 and 5 were permitted to examine Dr. R.V. Adyanthaya with liberty to defendant nos. 1 to 3 to cross-examine the witness. Defendant nos. 1 to 3 were also permitted to examine any witness with liberty to the plaintiff and defendant nos. 4 and 5 to cross-examine such witness. Defendant nos. 4 and 5 were allowed to file an affidavit in lieu of examination in chief of Dr. R.V. Adyanthaya within four weeks from the date of the order. The chamber summons was disposed of in the aforementioned terms.
By this chamber summons, defendant nos,. 4 and 5 seeks permission to examine Dr. Shri. R.V. Adyanthaya who had alleged to have examined deceased at the time of execution of the Will of the deceased and who had alleged to have put signature on the Will dated 9th August, 1995. Defendant nos. 4 and 5 are claiming to be the beneficiaries under the alleged Will dated 9th August, 1995 executed by the deceased testator.
2. Petitioners who are appointed as executors of the Will left by the deceased filed testamentary petition in this court (308 of 1997) inter alia praying for probate of the said will dated 9th August, 1995. The caveator filed caveat and affidavit in support. Testamentary petition was converted into suit. Defendant nos. 4 and 5 are claiming to be beneficiaries under the said will and are supporting the petitioners.
3. Petitioners examined five witnesses. On 1st December, 2009, defendant nos. 4 and 5 made statement that they were not intending to file any written statement as they were supporting the petitioner/plaintiff. On 20th December, 2010, this court recorded statement of the defendant nos. 4 and 5 through their learned senior counsel that defendant nos. 4 and 5 support petitioner/plaintiff and shall not lead any evidence. On 21st March, 2011 by an order passed by R.Y. Ganoo, J., it was observed that the witnesses examined by the plaintiff/petitioner does not prove that there was evidence as to who had incorporated the figures in the will in question and that omission was material omission in the matter of proving the document of Will. It was observed that on the basis of the evidence placed before this court, plaintiffs/petitioners had failed to prove the document of Will as having been duly executed on 9th August, 1995 by the testator and accordingly the said will could not be marked as exhibit and it continues to be marked as X2 for identification. This court directed the matter to be placed on board for arguments.
4. Plaintiff/Petitioners thereafter filed Chamber summons (60 of 2011) inter alia praying for recalling of the attesting witness. By an order dated 10th June, 2011 passed by this court, it is held that the witness who has proved the Will is required to depose about the date of the Will and the same must be allowed. This court directed the plaintiff to file further affidavit of examination in chief within one week only on that limited aspect with liberty to the defendant to further cross examine the plaintiff's witness. This court observed that the entire truth has to be brought on record and the court may recall any witness. It is held that no party can take advantage of any inadvertent error. The court is interested only in asserting the whole truth. It is held that under section 151 of the Code of Civil Procedure, 1908, the court can recall any witness for further evidence, however, the same shall be subject to witness being cross examined thereafter. The said order was impugned by the defendant nos. 1, 2 and 3 by filing appeal [Appeal (Lodging) No. 393 of 2011]. By an order dated 4th July, 2011 passed by the Division Bench, the said appeal is summarily dismissed on the ground that it was not maintainable. This court further observed that the learned Single Judge has allowed the Chamber summons filed by the applicants after hearing the parties and after holding that the witness who proved the Will was required to depose about the date of the Will.
5. It is not in dispute that the plaintiffs have closed their evidence. Defendant Nos. 4 and 5 have filed this chamber summons for permission to examine Dr. R.V. Adyanthaya who had alleged to have examined the deceased.
6. Mr. Shah, learned senior counsel appearing for defendant nos. 4 and 5 submits that in the Will dated 9th August, 1995 executed by the deceased, the doctor's certificate is also typed. There is certificate on page 6 of the said Will certifying that the deceased was in sound state of health and mental condition and is thus requ
