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2016 Supreme(Cal) 643
IN THE HIGH COURT AT CALCUTTA
Arijit Banerjee, J.
In the Goods of Saraj Kumar Chatterjee (Deceased) - Petitioner
Vs.
Tridib Kumar Sarkar - Respondent
GA No. 2958 of 2015 & TS No. 14 of 2006
Decided On : 15-12-2016
For the Petitioner: Mr. Utpal Bose, Mr. C.K. Saha, Mr. Partha Pratim Mukherjee
For the Respondent: Mr. Dhruba Ghosh
The power under O. 18 R. 17 of the CPC to recall and examine a witness or to allow fresh evidence after evidence is closed and arguments have begun, should be exercised carefully and sparingly depending on the facts of a case to do complete justice between the parties. Such power ought not to be exercised to enable a party to try and improve its case at an advance stage of the suit.
Headnote:
PROBATE - WILL - GENUINENESS OF SIGNATURE - EVIDENCE - SUBPOENA - PRODUCTION OF ORIGINAL SIGNATURE - APPOINTMENT OF THIRD HANDWRITING EXPERT - CPC, O. 18 R. 17A - CPC (AMENDMENT) ACT, 1999 - APPLICATION FOR PRODUCTION OF ORIGINAL SIGNATURE OF TESTATOR FROM BANK - MAINTAINABILITY - CIRCUMSTANCES FOR EXERCISE OF POWER UNDER O. 18 R. 17 - REJECTION OF APPLICATION - REASONS.
Fact of the Case:
An application was filed in a probate proceeding for grant of probate of a Will dated 31 August, 1988 claimed to be executed by one Saraj Kumar Chatterjee. The main prayers made in the application were to serve subpoena upon the Senior Manager of Punjab National Bank to produce the original full signature of the deceased from the custody of the Bank and to appoint a third Handwriting expert to compare the signature of the testator appearing on the Will in question and the signature of the testator on the Will dated 30 August, 1988 with the original signature of the testator produced from the Bank’s custody.
Finding of the Court:
The application was dismissed on the grounds that: - An earlier Will of the testator, dated 30 August 1988, has been admitted to probate by the Court, thereby accepting the authenticity and/or genuineness of the signature of the testator on the said earlier Will. - The probate of the earlier Will operates in rem and binds the whole world, including the plaintiff. - Both the handwriting experts have taken into consideration the testator’s signature on the earlier Will while filing their reports, which have gone against the plaintiff. - The application is speculative and an attempt to improve the plaintiff’s case at an advanced stage of the suit. - The plaintiff has not provided a sufficient explanation for the delay in filing the application.
Issues: 1. Whether the application for production of the original signature of the testator from the Bank is maintainable after the deletion of O. 18 R. 17A of the CPC by the CPC (Amendment) Act, 1999? 2. Whether the circumstances of the case warrant the exercise of the Court’s inherent power to allow the plaintiff to reopen the evidence and appoint a third handwriting expert?
Ratio Decidendi: 1. O. 18 R. 17A of the CPC, which pertains to production of evidence not previously known or which could not be produced despite due diligence, has been deleted by the CPC (amendment) Act, 1999. Hence, the present application is not maintainable. 2. The power under Sec. 151 can be exercised if the ends of justice so warrant and to prevent abuse of process of court and court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence has been laid by the parties, if the new documents are sought to be introduced by way of reopening the evidence, which were available through-out the trial, the power under Sec. 151 of the CPC should not be exercised. 3. In the present case, there is no explanation as to why the plaintiff did not seek to tender the document in the custody of the Punjab National Bank at the evidence stage or soon thereafter if necessary by causing subpoena to be served on the Bank.
Final Decision: The application for production of the original signature of the testator from the Bank and appointment of a third handwriting expert was dismissed without any order as to costs.
Arijit Banerjee, J.
1. The present application has been filed in a proceeding for grant of probate of a Will and Testament dated 31 August, 1988 claimed to be executed by one Saraj Kumar Chatterjee who passed away on 3 September, 1988. The petitioner is one of the joint executors named in the said Will. The other executor expired during the pendency of the probate application. The main prayers made in the present application are as follows:-
“(a) Leave be given to serve subpoena upon Sri Partha Dutta, Senior Manager, Punjab National Bank, Ballygunge Branch to produce the original full signature of Late Saroj Kumar Chatterjee of 143A, Rash Behari Avenue, Kolkata from the custody of the Bank in this Hon’ble Court;
(b) Third Handwriting expert be appointed from the panel of the High Court with a direction to inspect the signature of Late Saroj Kumar Chatterjee appearing in the Will of Saroj Kumar Chatterjee dated 31st August, 1988 being the subject matter of the instant suit and Will dated 30 August, 1988 the subject matter of Matter No. 107A of 1991 against the original signature of Late Saroj Kumar Chatterjee produced from the custody of Punjab National Bank and take photographs thereof and submit his opinion on the same.”
2. During the pendency of the present probate proceeding, one Sabitri Banerjee applied for probate of another Will of the said deceased, dated 30 August, 1988. The propounder of the said prior Will was the sole beneficiary and executrix thereunder. On 11 December, 1997, the said earlier Will was probated in favour of the said Sabitri Banerjee, since deceased.
3. The application for probate of the later Will dated 31 August, 1988, was contested by one Dr. Gopal Mitra by filing caveat and an affidavit in support thereof. Dr. Gopal Mitra passed away on 6 September, 2015. Presently the legal heirs of Dr. Gopal Mitra being his wife and two sons are contesting the probate application.
4. In the course of the present probate proceeding, two Handwriting experts were appointed, one at the instance of each party, to examine and express their opinion about whether or not the signature of the testator appearing on the Will dated 31 August, 1988 is genuine. Both the Handwriting experts opined that the signature on the said WILL is not of the testator.
5. Mr. Utpal Bose, Learned Senior Counsel for the petitioner submitted that one of the beneficiaries under the said Will, namely, Bharat Sevashram Sangha has recently been able to ascertain that the deceased had fixed deposits and a locker in his name with the Punjab National Bank, Ballygunge Branch. He submitted that the genuine signature of the testator is lying in the custody of the said Bank. Accordingly, this application has been made for leave to serve subpoena upon the Senior Manager of the said Bank to produce the original full signature of the testator from the custody of the Bank and to appoint a third Handwriting expert from the panel of the High Court to compare the signature of the testator appearing on the Will in question and the signature of the testator on the Will dated 30 August, 1988 with the original signature of the testator produced from the Bank’s custody and to give a report as regards the genuineness or otherwise of the testator’s signature on the will in question.
6. Mr. Dhruba Ghosh, Learned Senior Counsel appearing for the defendant submitted that O. 18 R. 17A of the CPC which pertains to production of evidence not previously known or which could not be produced despite due diligence, has been deleted by the CPC (amendment) Act, 1999. Hence, the present application is not maintainable. Mr. Ghosh then submitted that evidence has been closed and notes of arguments have been filed. The present application has been made at this belated stage only to fill up a lacuna in the evidence of the plaintiff. This is not permissible. The concerned fixed deposits were part of the affidavit of assets and at all material times were known to the plaintiff. There
