CM(M) 2123/2023

Page 1 of 7

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment reserved on: 03.01.2024

Judgment pronounced on: 18.01.2024

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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

Digitally Signed

By:NEELAM

Signing Date:20.01.2024

16:20:21

Signature Not Verified

CM(M) 2123/2023

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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

Digitally Signed

By:NEELAM

Signing Date:20.01.2024

16:20:21

Signature Not Verified

CM(M) 2123/2023

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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