9911796707
TMI Blog2013 (10) TMI 1583X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has framed the following issues: 1. Whether the last Will and testament of the deceased, Rajendra Singh Chhatrasal Singh dated 10th May, 2006 was validly executed. 2. Whether the deceased was in sound state of mind at the time of execution of the Will. 3. What relief, if any, is the plaintiff entitled to? 2. Learned senior counsel submits that by an order dated 23rd August, 2012 read with order dated 23rd January, 2013, plaintiff has been permitted to lead evidence in rebuttal if required. Evidence of two additional witnesses is complete. Learned senior counsel submits that in paragraph 3 and 4 of the affidavit in lieu of examination in chief filed by the defendant, it is deposed by defendant that the deceased parents were also staying with the plaintiffs at Santacruz address since 1982 and not at the address mentioned by the plaintiff. Learned senior counsel submits that paragraph 3 and 4 of the said affidavit are not relevant or material in any manner for deciding the petition for probate. Whether the said deceased was staying at the address mentioned by the plaintiff or at the address mentioned by the defendant is irrelevant for the purpose of deciding whether the said deceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents in support of his case to the Court and such written arguments shall form part of the record. (3B) A copy of such written arguments shall be simultaneously furnished to the opposite party. (3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing considers it necessary to grand such adjournment. (3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit. 4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies 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 files along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost which can be considered only after entire evidence is completed and this court can not strike of any part of evidence at this stage. Learned counsel submits that this court has no power to strike of portion of the affidavit. 5. Mr. Khandeparkar placed reliance on Rule 206 of the High Court (Original Side) Rules and submits that the court or Judge in chambers may order to be struck out from any affidavit any matter which is scandalous and may order the cost of any application to strike out such mater to be paid as between Advocate and client. Mr. Khandeparkar, learned counsel submits that in so far as the deposition made in para 3 and 4 in affidavit in lieu of examination in chief is concerned, the deponent of the affidavit has placed substantial evidence on record about the correct residential address of the said deceased at the time of his death to demonstrate that the plaintiff prevailed upon the deceased testator to execute the Will in question by bequeathing the property in favour of the party executing the Will. It is submitted that paragraphs 3 and 4 would indicate the conduct of the said deceased and the plaintiff and are thus relevant for the purpose of deciding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Original Side) Rules, would apply if an application is made to amend the plaint or subsequent proceeding or to strike out any matter therein, the same has to be disposed of by the Judge in chambers. Learned senior counsel submits that affidavit in lieu of examination in chief is not pleadings but is evidence. It is submitted that Rule 121(5) thus does not apply. As far as Rule 121(38) is concerned, learned senior counsel submits that the matters which are not expressly required to be disposed of in court and which Judge thinks fit to be heard in chambers, such applications can be directed to be heard in chambers by the learned Judge. He submits that the said rule also will not apply to the facts of this case. It is submitted that the plaintiff has already filed an application. It is submitted that the objections raised by the defendant is hyper-technical. It is submitted that Rule 121 does not apply to striking of the evidence. In any event, under Section 151 of Code of Civil procedure, 1908, this court has inherent power to consider such application. It is submitted that order 18 rule 2 of Code of Civil Procedure does not curtail the powers of the court under section 136 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not self acquired properties of the deceased, but has also alleged that the Will was not executed or the deceased was under pressure and/or undue influence which was alleged to have been exercised or practiced on the deceased by the plaintiff. In my view, Mr. Shah, learned senior counsel for the plaintiff is right that in view of the dispute about the validity of Will having been raised along with title issue, Plaintiff did not raise objection for striking part of paragraph no. 12. Even if plaintiff has not applied for striking of the portion of paragraph 12, it would not mean that what is deposed in paragraph Nos. 13 to 17 would be relevant to the issue in testamentary proceedings. In my view, there is no merit in this submission of Mr. Khandeparkar, learned counsel for the defendant. 10. As far as deposition made in paragraph 3 and 4 of the affidavit are concerned, on perusal of the said paragraphs, it is clear that the allegations of the defendant is that the deceased was staying with plaintiff at Santacruz address since 1982 and not at the address mentioned in the plaint. In my view whether the said deceased was staying at Santacruz or at Kalbadevi is not relevant for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit the said party to lead evidence not related to the issue involved or the issue which the party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of examination in chief. 12. As far as maintainability of this Chamber summons is concerned, on perusal of Rule 121(5) and 121(38), in my view, since 121(5) applies to the pleadings and not to evidence, such rule will not apply to the application filed by the plaintiff for striking of the part of the evidence. As far as rule 121(38) is concerned, that gives discretionary power to the court to dispose of the matters which are not expressly required to be disposed of in the court by hearing the same in chambers. The said rule also does not apply to such application. In my view, section 151 of the Code of Civil Procedure, 1908, gives inherent powers to the court to strike of the irrelevant evidence at this stage with a view to avoid any further delay in the matter and to avoid any cross examination on irrelevant issues. In my view, part of the evidence which is on the face of it irrelevant and not relevant to the issue involved or issue which the court ultimately cannot decide, can be struck of and/or can be ign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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