Judgment:
Vineet Saran, J.
1. The petitioner Smt. Rita Rani claims herself to be widow of Surendra Kumar Beri. After the death of said Surendra Kumar Beri on 1.2.2001, the petitioner filed an application under the Indian Succession Act for grant of succession certificate on 19.2.2001. In the said application, under the column of persons related to the deceased, the petitioner had given her own name and that of her daughter alone and no one else. Admittedly, respondent No. 1 Tanu Chauhan is the daughter of the petitioner but not through Surendra Kumar Beri; although in the description of the array of parties it has been shown that she is the daughter of late Surendra Kumar Beri. While the said proceedings were pending before the trial court, the respondent No. 2 Smt. Harvansh Kaur Beri filed an application for impleadment, on the ground that she had got married to the said late Surendra Kumar Beri on 9.2.1968. Thereafter the said respondent No. 2 also filed a separate application for grant of succession certificate in her favour. Both the applications, one filed by Rita Rani (petitioner) and the other filed by Harvansh Kaur Beri (respondent No. 2), were heard together. By a detailed order dated 17.3.2004, the application of the petitioner Rita Rani was rejected and that of respondent No. 2 Harvansh Kaur Beri was allowed. Aggrieved by the said order the petitioner filed a Civil Appeal No. 22 of 2004 before the District Judge, Saharanpur, which is now pending before the Additional District Judge, Court No. 6, Saharanpur. During the pendency of the said appeal the petitioner filed an application for accepting certain additional documents and affidavits on record to prove the case of the petitioner that she had got married to late Surendra Kumar Beri on 17.12.1986 as per the Arya Samaj rituals, which contention of the petitioner had been rejected by the trial court on the ground that the same was not proved. By the impugned order dated 31.8.2004 the appellate court has rejected the said application. Aggrieved by the said order the petitioner has filed this writ petition.
2. I have heard Sri M.K.Gupta, learned counsel appearing for the petitioner as well as Sri N.C.Rajvanshi, learned Senior Counsel, assisted by Sri Madhusudan Dixit, learned counsel appearing for the contesting respondent No. 2. No one has put in appearance on behalf of respondent No. 1 despite notice to the said respondent. Even otherwise, the interest of the petitioner and the respondent No. 1 are common, so much so that the affidavit in support of the writ petition has been filed by the husband of the petitioner No. 1. Counter and rejoinder affidavits have been exchanged between the contesting parties and with the consent of their counsel, this writ petition is being disposed of at the admission stage.
3. Sri M.K.Gupta, learned counsel appearing for the petitioner has submitted that the provisions of the Code of Civil Procedure including Order XLI Rule 27 will not apply to the proceeding in question. In the alternative, it has been submitted that even if the provisions of Order XLI Rule 27 would apply, then too, her application ought to have been allowed by the appellate court on the ground that there was a sufficient cause for the petitioner not having filed the documents before the trial court. It has further been submitted that no prejudice or injury would be caused to the contesting respondent No. 2 if the affidavits and documents are accepted by the Court at the appellate stage, as the same would only further cause of justice to enable the Court to arrive at a correct decision.
4. It is admitted to the petitioner that late Surendra Kumar Beri was married to respondent No. 2 on 9.2.1968. The petitioner had allegedly got married to said Surendra Kumar Beri in the year 1986 and that too by Arya Samaj rites which, before the trial court, she was unable to prove by any cogent evidence. The only ground taken for not having filed the relevant documents and affidavits in support of her marriage before the trial court is because of lack of legal advice given to her by her counsel appearing before the trial court. In this regard the appellate court has rightly observed that since the counsel appearing for the petitioner before the trial court as well as the appellate court was the same, thus such a ground of lack of advice would not be available to the petitioner. Even otherwise, it is a matter of common knowledge that if a party takes a stand before a court of law, it is his/her duty to prove the same by whatever best evidence which may be available with such party. It is not the case that the petitioner did not then have any such documents, or could not have produced such evidence, before the trial court. The party cannot be permitted to better his case by filing additional documents and evidence at the appellate stage, after a finding has been recorded against him by the trial court.
5. The further contention of the petitioner that the application for bringing certain additional evidence on record had been filed not under Order XLI Rule 27 C.P.C. but under the inherent powers of the Court and thus the appellate court has wrongly rejected the same by applying the provisions of Order XLI Rule 27 C.P.C, also does not have much force. Without going into the question as to whether the provisions of Order XLI Rule 27 C.P.C. would apply to the present proceedings or not, the principles enshrined therein would certainly be applicable. Even if the court is to invoke its inherent powers the principles of reasonableness and equity would be required to be followed.
6. In the end, the learned counsel for the petitioner urged that technicalities of law should not come in the way of the Courts while dispensing justice. In the facts of this case, the question of technicalities does not at all come in the way. As it has already been held, granting opportunity to the petitioner to better his case at the appellate stage, after the finding of the trial court in the summary proceedings had been recorded, would not be justified in the circumstances of the present case. In fact, it would cause injustice to the other party. Accordingly, in my view, the appellate court has not committed any illegality while disallowing the application of the petitioner.
7. Even otherwise, the application of the petitioner for grant of succession certificate had been filed within few days of the death of the said late Surendra Kumar Beri. This was also without giving the correct information to the Court about the relationship of the said Surendra Kumar Beri with respondent No. 2. Only her own daughter (not through the said late Surendra Kumar Beri) was shown as the relative of the said Surendra Kumar Beri. The same clearly goes to show that the petitioner concealed material facts and did not approach the trial court with clean hands. As such, in my view, no indulgence is required to be granted to such a party, especially in this extraordinary discretionary jurisdiction under Article 226 of the Constitution of India. Accordingly, besides the decision of the appellate court being absolutely justified and valid on merits, in my view, this writ petition is also liable to be dismissed on the ground that this Court should decline to exercise its discretionary jurisdiction in favour of a person who has not initially approached the Court with clean hands.
8. Thus, this writ petition is dismissed being devoid of merit. No order as to costs.
9. In the end, the learned counsel for both the parties submitted that since the appeal filed by the petitioner has been pending before the appellate court for the last more than 1 1/2 years, it would be desirable that the same may be decided expeditiously. The prayer appears to be reasonable. It is thus provided that the appeal be decided as expeditiously as possible, without granting any unnecessary adjournments to either of the parties.