* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 03.01.2024 Judgment pronounced on: 18.01.2024 + CM(M) 2123/2023 ARVINDER SINGH SANDHU ..... Petitioner Through: Mr. Harpreet Singh, Ms. Suhani Mathur, Mr. Jatin Kumar Gaur and Mr. Gurpreet Singh, Advs.

versus KAWALJEET SINGH SANDHU & ORS. ..... Respondents Through: Mr. Sudhir Nagar, Adv. for R-1.

CORAM:

HON'BLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T

1. The present petition filed under Article 227 of the Constitution of India, 1950 is directed against the impugned orders dated 07.10.2022 and 10.01.2023 passed by the learned Additional District & Sessions Judge-2, Karkardooma Court, Delhi (hereinafter referred to as “ADJ”) in CS No. 1883/2016 titled “Kawaljeet Singh & Ors. Vs. Arvinder Singh Sandhu & Ors.” whereby the learned ADJ has dismissed the application filed by the petitioner under Order XVIII Rule 17 of the Civil Procedure Code (hereinafter referred to as “CPC”) and the review application of the order dated 07.10.2022 filed by the petitioner respectively.

2. The brief facts necessary for disposal of the petition are that in the year 2013, the respondents herein had filed a suit for declaration, partition Signature Not Verified Digitally Signed CM(M) 2123/2023 Page 1 of 7 and permanent injunction in respect of the property bearing no. B-51, Jhilmil Colony, Shahdara, New Delhi. The petitioner herein filed the written statement whereby the petitioner relied upon Will dated 25.09.1995 executed by the mother of the petitioner in presence of respondent no. 4 herein (defendant no. 4 in the Suit).

3. It is the case of the petitioner that the mother of the parties namely Smt. Harbans Kaur had executed a will in July, 1992 in favour of the father of the parties and the said Will was cancelled by her in March, 1993 vide registered cancellation of Will deed. Thereafter, the mother of the parties had further executed a Will dated 25.09.1995 in favour of the petitioner in presence of Defendant no. 4 and hence the petitioner became the sole and absolute owner of the suit property by virtue of Will dated 25.09.1995. Conversely, the respondent has claimed the said Will to be a manufactured document by the petitioner.

4. The record reveals that respondent no. 1 led the plaintiff evidence and same was concluded. Thereafter, the petitioner led his evidence in defence and five witnesses were examined and discharged. The defence evidence was closed vide order dated 30.05.2022 and the case was fixed for final arguments.

5. The petitioner being aggrieved by the decision of learned ADJ to close the evidence on behalf of the respondent moved an application under Order XVIII Rule 17 CPC wherein, he sought permission to examine respondent no. 1 as a witness as he is a key witness in proving the Will dated 25.09.1995. The said application was dismissed by learned ADJ vide impugned order dated 07.10.2022. The petitioner preferred a review application, however, the same was dismissed vide impugned order dated Signature Not Verified Digitally Signed CM(M) 2123/2023 Page 2 of 7

10.01.2023. Aggrieved by both the orders, the petitioner preferred the present petition.

Submissions by the petitioner

6. Mr. Harpreet Singh, learned counsel for the petitioner submitted that the learned Trial Court failed to appreciate that in order to prove Will dated 25.09.1995, respondent no. 4 is a vital witness as the said Will was executed in his presence. Therefore, the learned Trial Court failed to exercise its inherent powers to permit fresh evidence by examining respondent no. 4 as a defence witness. The learned Trial Court failed to appreciate the import of Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 as respondent no. 4 is a crucial witness to prove the Will.

7. It was further submitted that the learned ADJ failed to appreciate that the Court has powers under Order 16 Rule 1(3) CPC to call any witness even if the name of said witness is not included in the list o