Krishan Kumar Saini Thr Lrs V K Saini v. Rajinder Kumar Saini (Since Deceased) Thr Lrs & Anr

ORDER � % 13.11.2017 271h This order is in continuation of the earlier order dated October, 2017 in CM (M) No.1169/2017. The counsel for the petitioner has been heard. CM (M) No.682/2015 has been preferred impugning the order dated 10th February, 2015 in Suit No.677/2014 of the Court of Additional District Judge-14, Central District, Tis Hazari Courts, Delhi. Page 1 of 4 CM(M) Nos. 682/2015 & 1169/2017 � After hearing the counsel for the petitioner, what emerges is, (i) that 4.� Rajender Kumar Saini and Surinder Kumar Saini filed a petition seeking probate of a document stated to be the validly executed last Will of their father Som Nath Saini; (ii) the said Probate Case was dismissed; (iii) FAQ No.104/1987 was preferred by Rajender Kumar Saini only against the order of dismissal of the Probate Case; (iv) during the pendency of the aforesaid appeal, Rajender Kumar Saini expired; (v) application was filed by one Premshila Saini and her son Achal Kumar Saini for suLbstitution as heirs of Rajender Kumar Saini claiming to be the wife and son respectively of Rajender Kumar Saini; (vi) the aforesaid claim of Premshila Saini and Achal Kumar Saini was disputed by Krishan Kumar Saini, ibeing another son of Som Nath Saini and who claimed that Rajender Kumar Saini was unmarried and issueless and on his demise, his living brothers and sisters were required to be substituted in his place or his name was liable to be deleted from the array of parties in the FAQ No.104/1987; it is the claim of Krishan Kumar Saini that Premshila Saini was maid in the house of Rejender Kumar Saini; who lived alone; (vii) that after the dismissal of the Probate Case, Krishan Kumar Saini had also filed CS(OS) No.616/1987 in this Court for partition th of the immovable property left by Som Nath Saini; in the said Suit, on 26 October, 1989, the following issues were framed: Whether Shri Som Nath Saini, deceased, made a valid Will dated 26.8.1982? In case Issue No.1 is held against the defendants, what directions are to be given to the Local Commissioner in the case of passing the preliminary decree? Page 2 of4 CM(M) Nos. 682/2015 & 1169/20/7 �

(c)� Relief; 1h On 13 July, 1992, the following additional issues were framed:

(2A) Whether the Suit is properly valued for the purpose of court fee?

(viii) on the demise of Rajender Kumar Saini who was a party to that Suit also, enquiry for substitution of his LRs were pending in the Suit as 15th well; (ix) finding so, vide order dated October, 2003 in FAO No.104/1987 aforesaid, the question of substituLtion of the legal representatives of Rajender Kumar Saini was ordered to be decided in the enquiry underway in the Suit; (x) that the learned Additional District Judge 10tl has answered the said enquiry vide impugned order dated February, 2015 and has held Premshila Saini and Achal Kumar Saini to be the wife and son of Rajender Kumar Saini; (xi) FAO No.104/1987 has since been 9th May, 2016; (xii) that with the dismissal dismissed for non-prosecution on of the appeal aforesaid, the issue framed in the Suit qua the Will also stands decided and the only question which remains to be decided in the Suit is, whether Premshila Saini and Achal Kumar Saini are the heirs of Rajender Kumar Saini or not. The orders/proceedings sheets handed over in the Court at the time of a' � hearing are taken on record. I have wondered whether the validity of the findings of fact returned 10th February, 2015 and which are in the impugned order dated determinative of the Suit also are to be gone into uncter Article 227 of the Constitution of India inasmuch as the same would entail appreciation of evidence recorded in the enquiry. Page3of4 CM(M)Nos. 682/2015& 1169/2017 � NOVEMBER 13, 2017 pk.. CM(M)Nos. 682/2015& 1169/2017 Order dasti under signature of Court Master. c

Al ENDLAW, J. Order 43 Rule 1 of the CPC is not found to provide for any appeal against such an order. Unless the order is appealable under any provision or is to be treated as a decree, correctness of it will have to be gone into under Article 227 of the Constitution of India. In the aforesaid scenario, CM (M) No. 1169/2017 is dismissed. List CM (M) No.682/2015 on 131h December, 2017 as already scheduled but before this Bench instead of before the Joint Registrar. The file of CSDJ No.10509/2016 pending in the Court of Additional District Judge-14, Central District, Tis Hazari Courts, Delhi be requisitioned before this Court before the next date of hearing. The further proceedings in the said Suit are stayed.

� $-4&2 *� IN THE HIGH COURT OF DELHI AT NEW DELHI +� CM(M) 682/2015, CMs No.13103/2015 (for stay), 4768/2017 (of petitioners under Order 22 Rule 4 & 11 CPC) KRISHAN KUMAR SAINT (DECEASED) THROUGH LRS� Petitioner Through: Mr. Ravi Awasthi, Mr. Ramakant Sharma, Advocate Versus RAJINDER KUMAR SAINT (DECEASED) THROUGH LRs & ORS� Respondents Through: None AND +� CM(M) 1169/2017, CMs No.38013/2017 (for stay), 38014/2017 (for condonation of delay of 6 days in re-filing) KRISHAN KUMAR SAINT (DECEASED) THROUGH LRS� Petitioners Through: Mr. Bhupinder Singh Saini, Advocate Versus RAJINDER KUMAR SAINI (DECEASED) THROUGH LRs & ANR .....Respondents Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW