Neelam Verma v. Chakresh Kumar

RAJIV SAHAI ENDLAW, J. AUGUST 25, 2017 'pp'.. (Corrected & released on 27th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th August, 2017 + CM(M) No.915/2017 & CM No.30638/2017 (for stay) NEELAM VERMA ..... Petitioner Through: Ms. Geeta Luthra, Sr. Adv. with Mr. Rajiv Kumar and Mr. Prateek Yadav, Advs. Versus CHAKRESH KUMAR ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.30639/2017 (for exemption). 1. Allowed, subject to just exceptions. 2. The application stands disposed of. CM(M) No.915/2017 & CM No.30638/2017 (for stay) 3. This petition under Article 227 of the Constitution of India impugns the order [dated 24th July, 2017 in PC No.01/12 (New No.16018/16) of the Court of Additional District Judge (West)-02, Tis Hazari Courts, Delhi] of dismissal of the application of the petitioner for recall and re-examination of the witness P.K. Joshi examined by the petitioner. 4. The petitioner has filed the Probate Case, from which this petition arises, seeking probate of the document dated 15th February, 2011 as the validly executed last Will of Shri Virender Kumar Verma who died on the same day i.e. 15th February, 2011. 5. The petitioner, in proof of the document claimed to be the Will, examined one P.K. Joshi as PW-2 and who was cross-examined by the counsel for the respondent. 6. The petitioner, thereafter filed an application under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC) pleading, (i) that the petitioner, after PW-2 P.K. Joshi had been examined cross-examined and discharged, visited the house of PW-2 P.K. Joshi on the occasion of the birthday celebrations of the granddaughter of PW-2 P.K. Joshi; (ii) that the petitioner, on the said occasion enquired from PW-2 P.K. Joshi the circumstances of execution of the document of which probate is sought; (iii) PW-2 P.K. Joshi then revealed that he was handed over a copy of the typed Will, newspaper dated 5th January, 2008 through which the deceased Virender Kumar Verma had debarred his son and one handwritten document in which details of other properties were mentioned, by the deceased Virender Kumar Verma in the morning of 15th February, 2011; (iv) that the petitioner also came to know that the deceased Virender Kumar Verma, after handing over the aforesaid documents to PW-2 P.K. Joshi had requested PW-2 P.K. Joshi to get typed a Will after changes and PW-2 P.K. Joshi had acted upon the instructions of the deceased Virender Kumar Verma; (v) that the petitioner asked PW-2 P.K. Joshi as to why PW-2 P.K. Joshi did not depose the said facts and did not bring the documents(claimed to be possessed by him) to the Court at the time of his deposition; (vi) PW-2 P.K. Joshi replied, that he had brought the documents with him to the Court but since the counsel for the respondent did not ask the PW-2 P.K. Joshi about the same, he did not depose about the same; (vii) the petitioner got frustrated and asked PW-2 P.K. Joshi to depose the true facts before the Court; (viii) PW-2 P.K. Joshi however is not ready, stating that he will not get into any kind of harassment or disturbance by coming again and again to the Court; (ix) that the PW-2 P.K. Joshi has however handed over the original paper in which details of the properties are mentioned and the copy and typed Will on the basis of which he got typed the Will dated 15th February, 2011, to the petitioner; (x) that the petitioner did not have the knowledge of the aforesaid facts and the documents through which the deceased had debarred his son; (xi) that examination of PW-2 P.K. Joshi is essential for proper adjudication of the matter; and, (xii) recalling of PW-2 P.K. Joshi is necessary and if he is not re-examined, the petitioner will suffer irreparable injury. 7. The counsel for the respondent opposed such re-examination of PW-2 P.K. Joshi stating that the deceased Virender Kumar Verma was not in a position to move and talk due to his precarious physical condition and had been put on inotropic medicines i.e. life support medicines; according to the tes