SHRI RAJINDER SINGH BEDI vs THE STATE & ORS

$~73
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th January, 2024
+ TEST.CAS. 100/2015, I.As. 1217/2024, 1218/2024, O.A. 11/2024 & O.A. 12/2024

SHRI RAJINDER SINGH BEDI ….. Petitioner
Through: Ms. Sonali Malhotra, with Ms Nidhi Narwal, Advs (M. 9625011196)
versus

THE STATE & ORS ….. Respondents
Through: Ms. Binisa Mohanty, Adv. for R-5(a) (M.9999176557)
CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.
I.As. 1217-18/2024, O.As. 11-12/2024 in TEST.CAS.-100/2015
2. These two original appeals have been filed challenging the orders dated 21st November, 2023 and 11th July, 2023. In effect, these two orders of the Joint Registrar have rejected the prayer of the Respondent No.5 (a) to examine one Mr. Vivek Singh who is stated to be a forensic expert, to compare the signatures of the testator along with certain documents. The said two orders of the Joint Registrar in effect rejects the prayers of the Respondent No.5 (a) and only permit Respondent No.5 (a) to depose himself as a witness.
3. The challenge by the Respondent is three-fold:
(i) The Respondent wishes to produce certain documents with affidavit in evidence filed by Respondent No.5 (a) as exhibits.
(ii) The said Respondent also wishes to produce an FSL expert-Mr. Vivek Singh.
(iii) Respondent No.5 (a) also wishes to get the documents filed with the appeals exhibited before the Local Commissioner.
4. The present petition seeks grant of a probate of the Will of late Shri Jaswant Singh Bedi dated 20th October, 2014. He had five children i.e., the Petitioner -son and four daughters who are Respondent Nos. 2 to 5.
5. The Appellant/Respondent No.5 in these matters is the son of Mr. Satish Vadhera namely Mr. Preet Pal Singh. The petition itself was filed and notice was issued on 20th November, 2015 and more than eight years have passed.
6. Issues in this matter were framed on 18th December, 2018. The only contesting Defendants as of today are Respondent Nos. 4 and 5 as the dispute has been settled with Respondent Nos. 2 and 3.
7. Insofar the proving of the Will is concerned, the Petitioner’s evidence has concluded on 4th December, 2019.
8. Respondent No.5 had passed away on 20th September, 2020 and she had not filed any list of witnesses. The impleadment of the legal heirs were permitted in January, 2023.
9. The present applications which were rejected by the Joint Registrar were, filed by Respondent No.5 (a) and upon those applications being rejected, appeals have now been filed which are being considered by the Court.
10. Ms. Malhotra, ld. Counsel appearing for the Petitioner submits that the Respondent No.5 has always contested the matter and has had adequate opportunity to place her case. The issues having been framed so long ago i.e., as of December, 2018, no list of witnesses was filed by Respondent No.5. Even after the conclusion of the evidence of the Petitioner, the affidavit of the Respondent No.5 (a) has been filed only on 20th March, 2023.
11. On behalf of Respondent No.5 (a)- Ld. Counsel submits that Respondent No.5 (a)’s intention is to only ensure comparison of the signatures on the Will and in the other contemporaneous documents. She submits that certain documents have already been attached as exhibits to the affidavits which have been filed. In addition, Respondent No.5 (a) wishes to produce the FSL report to compare the signatures.
12. There is no doubt that the Respondent No.5 (a) failed to file any list of witnesses. The Joint Registrar has permitted only the Respondent No.5 (a) himself to be examined.
13. The case of the Respondent No.5 (a) is that the testator passed away on 3rd November, 2014 just a few days after the Will was executed and he was also in a coma. She submits that an opportunity ought to be granted to Respondent No.5 (a) to place the case on merits.
14. The question at this stage is two fold. One is whether Respondent No.5 (a) can lead the evidence of a forensic expert and secondly whether the documents can be taken on record which are attached with the evidence of Respondent No.5 (a).
15. Insofar as the first aspect is concerned, there has been no list of witnesses filed for more than eight years by the Respondent No.5. At this stage after the evidence of the Petitioner is concluded, it would not be permissible for the Respondent No.5(a) to produce a witness especially for the purpose of comparison of signatures at this stage.
16. The Joint Registrar has already permitted the Respondent No.5 (a) to lead evidence on his own.
17. The matter is listed before the Local Commission on 30th January, 2024. If any documents are attached with the affidavit by way of evidence filed by Respondent No.5 (a), the objections in respect of the same shall be recorded by the Local Commissioner in terms of the various decisions of this Court which are as under:
i. Bipin Shantilal Panchal v. State of Gujarat & Anr., (2001 (3) SCC 1)
ii. Exide Industries Ltd. v. Exide Corporation USA & Ors., (2014 (58) PTC 200 (Del))
iii. Xerox Corporation & Anr. v. P.K. Khansaheb & Anr., ((2019) 77 PTC 249)
iv. Gujarat Ambuja Cements Ltd v. Mrtp Commission & Ors. (2006 SCC ONLINE DEL 936)
v. Prakash Oil Corporation and Another v. Brij Kishan CM (M) 1002/2018 and CM Appl. 34738/2018 on October 1, 2019
In the said decisions, it is clearly laid down that objections can be raised at the time of recordal of deposition of various witnesses and the same need not be decided at that stage and can be left for final decision at the time of final hearing. Relevant portion of Xerox Corporation (supra) is set out below:
“14. What is the procedure to be followed in case documents are attached with the affidavit-in-evidence? Is the Joint Registrar required to place the case before the Court before recording the examination-in-chief when the affidavit-in-evidence is filed with documents? As per the procedure, examination-in-chief and exhibit marking is required to be done when the witness is present. The exhibition of documents which are filed with the affidavit-in-evidence is a process which is performed in front of the Joint Registrar/Local Commissioner and if in each and every case where the affidavit is filed with documents, the matter is placed before the Court, it would in effect mean that no evidence can be recorded on the said date. The purpose of recordal of evidence by affidavit and expeditious recordal there to would completely be defeated. With this object in mind, Order XVIIII Rule 4(1), provides as under: “Order XVIII Rule 4. Recording of evidence:- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copier thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
15. Even, the DHC (OS) Rules specifically have a provision in respect of objections to exhibition of documents in Chapter XI Rule 11. The same reads as under: “Chapter XI Rule 11. Objections to exhibition of documents. – (i) Objection(s) to exhibiting any document or its production, shall be recorded to be decided at the time of decision of the suit/ other original proceeding or at such time as the Court considers appropriate (ii) In case, the Registrar/ Commissioner considers that the objection(s) needs to be decided forthwith, he shall place the matter before Court, without delay after recording of reasons for the same.”
16. Further, in amendments to the DHC (OS) Rules, that have been introduced w.e.f. 1st November, 2018, the Rule with respect to documents has also been considerably streamlined and copies of documents are sufficient to be filed and originals need not be filed. The purpose of the DHC (OS) Rules and the amendments thereof is to ensure that documents are not objected to just for the sake for doing so, unless there is a serious allegation in respect of the documents or exhibition thereof such as fraud, forgery, fabrication, etc.
17. Documents that are relevant for adjudication of issues usually ought to be accepted and taken. The purpose of recordal of examination-in-chief by way of evidence ensures that the affidavit along with all the documents is given in advance to the opposite side so that any objection can be recorded at the time of exhibit marking. The view taken by the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat & Ors. 2001 (3) SCC 1 and the Division Bench of this Court in Exide Industries Ltd. v. Exide Corporation USA & Ors., is to ensure that repeated objections are not taken against documents so as to increase the inconvenience to witnesses who have to appear before the Court for recordal of evidence. The procedural safeguard that documents should be filed with pleadings is to ensure that the opposite side has notice of all the documents and by attaching the documents with affidavit-in-evidence and supplying advance copies of the same, that purpose is being satisfied. Thus unless there is an allegation of egregious nature against a particular document, usually documents filed by witnesses, which are broadly within pleadings, ought to be either exhibited or marked at the time of when the same are being tendered after recording all the objections raised by the parties. The said objections should not de-rail the trial of the suit in any manner as it has happened in the present case.
……………..
20. A conjoint reading of the provisions of the CPC, the Commercial Courts Act and the DHC (OS) Rules 2018 (as notified w.e.f.1st November 2018) requires parties to broadly adhere to the following procedure in respect of documents, admission/denial, exhibit marking and during recordal of evidence.
a) All documents in the power of possession of parties are required to be filed with the pleadings [Order VII Rule 14 and Order VIII, Rule 1A CPC, Order XI Rule 1 CPC as amended by the Commercial Courts Act, Chapter IV, Rule 1 and Annexure E of the DHC(OS) Rules, 2018, as amended by Notification No.722/Rules/DHC dated 16th October, 2018];
b) Filing of copies is sufficient [Chapter IV Rule 1(a), as amended by Notification No.722/Rules/DHC dated 16th October, 2018];
c) If a party wishes to inspect original documents, notice ought to be given by the counsel and at a mutually convenient date, time and venue, inspection ought to be given within the time stipulated [Order XI Rule 15 & 17 CPC, Order XI Rule 3 CPC as amended by the Commercial Courts Act, Chapter VIII of the DHC (OS) Rules, Chapter VII Rule 2(ii) of the DHC (OS) Rules as amended by Notification No. 722/Rules/DHC dated 16th October, 2018];
d) Affidavits/Statements of admission/denial have to be filed with either the Written Statement or the Replication [Chapter VII Rule 3, Rule 6 and Rule 7 of the DHC (OS) Rules];
e) After inspection is sought and given, a document schedule shall be filed before the Joint registrar, duly endorsed by counsels for all parties [Chapter VII Rule 7A of the DHC (OS) Rules as amended by Notification No.722/Rules/DHC dated 16th October, 2018];
f) Exhibit marking shall be carried out by the Joint Registrar on the basis of the Document Schedule [Chapter VII, Rule 16 of the DHC (OS) Rules as amended by Notification No.722/Rules/DHC dated 16th October, 2018];
g) If any party wishes to file any documents after Issues are struck and the matter has proceeded for evidence, leave has to be sought from the Court [Order XI Rule 5 CPC as amended by the Commercial Courts Act];
h) Affidavits of evidence usually should not have any documents attached to them. Any objections raised in respect of the said documents are to be recorded subject to the orders of the Court. [Order XVIII Rule 4 (1) CPC, Order XIX Rule 3 CPC as amended by the Commercial Courts Act, Chapter XI Rule 1(ii), Chapter XIX of the DHC (OS) Rules]. However, in respect of such documents attached with the affidavits in evidence, the witness ought to state reasons in the affidavit itself as to why the same were not filed earlier. The said documents have to be within the broad contours of the pleadings and the documents already on record. Advance copies of the same ought to be served.
i) At the time of examination in chief, objections can be raised, which shall be recorded by the Joint Registrar or the Local Commissioner and the trial will continue. No derailment of the trial is permitted, once the witness is present [Order XVIII Rule 4(1) CPC, Chapter XI Rule 11 of the DHC (OS) Rules].”

Thus the objections to documents and cross-examination of Witness subject to the objections in respect of the documents filed with the evidence, shall be recorded by the Local Commissioner and the same can be shall be adjudicated at the final stage.
18. The examination-in-chief and cross examination be conducted. The marking of exhibits shall be in accordance with law.
19. The question as to whether these documents can be taken on record shall first be adjudicated at the final stage before the commencement of final evidence.
20. The Petitioner is free to get her objections recorded in respect of Exhibits of Respondent No.5 (a) i.e., W-1/1, W-1/2 and W-1/3 and also cross-examine the witness.
21. The appeals and all the applications are, accordingly, disposed of.
TEST.CAS.-100/2015
22. It is made clear that the Local Commissioner shall not give any unnecessary adjournments in this matter and shall record the evidence expeditiously.
23. List before Court on 12th July, 2024.

PRATHIBA M. SINGH
JUDGE
JANUARY 18, 2024
dj/bh

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