Naveen Chander Kapur vs.state & Ors. - Court Judgment

% + IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:

05. 07.2017 TEST. CAS. 3/2011 NAVEEN CHANDER KAPUR ........ Petitioner

Versus ........ RESPONDENTS

STATE & ORS. Advocates who appeared in this case: For the... Petitioner

: Mr Raman Kapur, Senior Advocate with For the... RESPONDENTS

: Mr Rahul Sharma, Mr C.K. Bhatt for R-1. Mr Dhiraj Sachdeva. Mr Baban Prakash for R-2. Mr Peeyush Kalra, Mr Arvind Nayar, Mr S.K. Jha for R-3 to R-5. Ms Devjani Sharma for R-6. CORAM HON’BLE MR JUSTICE VIBHU BAKHRU JUDGMENT VIBHU BAKHRU, J IA No.5228/2016 1. The applicants (respondent nos. 3 to

5) have filed the present application seeking amendment of the objections filed to oppose the above captioned petition. The petitioner has filed the above captioned petition seeking probate in respect of the Will of late Smt. Ved Vati Kapur (the testator). The testator expired on 24.12.2002 and it is claimed that her Will dated 03.10.1996 (hereafter 'the Will') was the last will and testament of the testator. The petitioner states that in terms of the Will, the testator had inter alia bequeathed the property bearing No.3, Nizamuddin East, New IA No.5228/2016 in TEST.CAS. 3/2011 Page 1 of 9 Delhi to her sons: the ground floor of the said property was bequeathed to Sh. Satish Chander Kapur (since deceased), the first floor was bequeathed to Sh. Subhash Chander Kapur (since deceased) and the second floor was bequeathed to Sh. Naveen Chander Kapur.

2. The applicants are the heirs (wife, son and daughter) of late Sh. Satish Chander Kapur. The applicants (arrayed as respondent nos. 3 to 5 in the above captioned petition) filed their objections to the petition and challenged the genuineness and validity of the Will. They allege that the Will "is a false, fabricated and created document". Further, it is also their case that the property in question, namely, bungalow bearing No.3, Nizamuddin East, New Delhi was allotted to Sh. K.N. Kapur, the pre- deceased husband of the testator, in lieu of family property left by him in Pakistan at the time of partition. It is further claimed that Sh. K.N. Kapur had partitioned the aforementioned property during his lifetime amongst his three sons with the testator having only a life interest in the said property.

3. The applicants (objectors) now claim that while going through the objections filed by them, they realised that besides the objections already stated in the pleadings, there were other objections, which would have a material bearing on the grant of probate. They now seek to amend their objections by inter alia pleading that the testator was not in a sound physical and mental condition to execute the Will. They state that the testator was suffering from short-term amnesia and was not in a proper frame of mind at the material time due to severe mental agony and shock on account of demise of her husband. And, in addition, she was also suffering from various other ailments. The applicants further claim that IA No.5228/2016 in TEST.CAS. 3/2011 Page 2 of 9 there was no occasion for the testator to execute the Will within a year of the demise of her husband who had also executed a Will on 12.07.1995. It is further claimed that the testator during her lifetime did not claim or assert any ownership rights in respect of the property in question. The applicants pleaded that the Will was brought into existence at the instance and under the influence of the petitioner and the same is self-created and forged.

4. It is apparent from the above that the applicants seek to urge further grounds in opposition of the abovementioned petition. Plainly, the amendments sought are not repugnant to the pleadings already filed by the applicants.

5. The petitioner has sought to oppose the present application essentially on two grounds. First, it is contended that filing of the present application is not bonafide and is only for the purposes of delaying the present proceedings. Second, it is contended that the trial has already begun and the application does not disclose any reason which prevented the applicants from raising such pleas at the initial stage.

6. Undoubtedly, the present application has been filed belatedly and there is no credible explanation as to why the objections sought to be included by way of the present application were not urged earlier. The applicants have merely stated that while going through the pleadings they realised that besides taking the objections already pleaded "certain other important aspects having serious impact on the issue of grant of probate in the same set of pleadings have not been stated / emphasized, though the same would go to the root of the matter". However, it cannot be disputed that objections now sought to be urged, do articulate the controversies IA No.5228/2016 in TEST.CAS. 3/2011 Page 3 of 9 sought to be raised by the applicants in opposition to the probate petition. Therefore, such amendments do bring out the real controversy between the parties and, therefore, subject to the proviso to Order VI Rule 7 of the Code of Civil Procedure, 1908 (hereafter „the CPC‟), such amendments ought to be permitted.

7. Plainly, the applicants were not precluded or prevented from raising these objections earlier and, therefore, it is not possible to accept that the applicants could not have raised such pleas earlier despite due diligence.

8. Concededly, if the proviso to Order VI Rule 17 of the CPC is applicable, the present application would necessarily have to be rejected. Thus, the only question that falls for consideration is whether the trial in the present case has commenced, thus attracting the rigor of the proviso to Order VI Rule 17 of the CPC which expressly provides that “no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of trial”.

9. The relevant facts for addressing the above controversy are that after the pleadings were completed, issues were struck by this Court on 27.01.2016 and the matter was posted before the learned Joint Registrar on 29.04.2016 for fixing the dates for recording evidence. The present application was filed on 28.04.2016 and was listed before learned Joint Registrar on 29.04.2016 (the date already fixed by this Court on 27.01.2016). IA No.5228/2016 in TEST.CAS. 3/2011 Page 4 of 9 10. On 29.04.2016, learned Joint Registrar directed the petitioner to file affidavits of evidence within a period of eight weeks and fixed the case for recording petitioner's evidence on 21.11.2016, 22.11.2016 and 23.11.2016. Learned Joint Registrar also issued notice in the present application and directed that the reply be filed within a period of four weeks.

11. The learned counsel appearing for the petitioner (non-applicant) contended that trial commences on the issues being struck and thereafter, no application for amendment of the pleadings could be allowed, without the Court satisfying itself that the party seeking such amendment could not have raised such pleas prior to commencement of the trial despite due diligence. He relied on the decisions of the Supreme Court in Kailash v. Nanhku and Ors: (2005) 4 SCC480and Vidyabai & Ors. v. Padmalatha and Anr.: (2009) 2 SCC409as well as the decision of a Coordinate Bench of this Court in J.K. Kashyap v. Rajiv Gupta and Ors: (2013) 196 DLT263in support of his contention that trial is commenced on the date when the issues are framed and the matter is listed for hearing.

12. The learned counsel appearing for the applicants relied on the decisions of a Coordinate Bench of this Court in Rajesh Sharma v. Krishan Pal and Anr: (2011) 183 DLT791and on the strength of the said decision contended that trial would begin only when the witnesses appear in Court for giving evidence.

13. In Kailash v. Nanhku (supra), the Supreme Court had held as under:-

"“At this point the question arises: When does the trial of an election petition commence or what is the meaning to be assigned to the word "trial" in the context of an election IA No.5228/2016 in TEST.CAS. 3/2011 Page 5 of 9 petition?. In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'.” 14. The aforesaid decision was also referred by the Supreme Court in the later decision given in Vidyabai (supra), wherein the Supreme Court held as under:-

"“The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to “commencement of proceeding”.” 15. The aforesaid view was also followed in the case of J.K. Kashyap v. Rajiv Gupta (supra). In that case, the Court had framed issues on 08.08.2011 and had directed that the matter be placed before the Joint Registrar on 21.09.2011 for fixing the dates for recording of cross- examination of the plaintiff's witnesses. The Division Bench had, by an order dated 16.11.2011, appointed a local commissioner to record the evidence of the parties. The plaintiff was directed to file the evidence by way of affidavits on or before 20.12.2011, pursuant to which the plaintiff did so and the matter was fixed before the local commissioner on 31.01.2012. The application for amendment of the pleadings was filed thereafter. This Court following the decision of the Supreme Court in IA No.5228/2016 in TEST.CAS. 3/2011 Page 6 of 9 Vidyabai (supra) concluded that trial had commenced and rejected the application for amendment of pleadings.

16. In Rajesh Sharma (supra), a Coordinate Bench of this Court held that the decision in the case of Kailash v. Nanhku (supra) would not be applicable as the said decision was rendered in the context of an election petition. The Court further proceeded to hold that actual commencement of trial would take place only once the witness appears in Court for giving evidence or affidavit of the witness is filed for examination-in-chief. In that case, this Court followed the earlier decision of this Court in Mohd. Saleem and Ors. v. Naseer Ahmed: AIR2007Delhi 48, wherein, this Court had held as under:-

"“14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of witnesses whether in the form of filing of affidavits or otherwise.

15. In view of the aforesaid position, it cannot be said that on framing of issues itself the trial has commenced and thus the proviso to Rule 17 of Order 6 of the said Code would come into play.” 17. It is also relevant to refer to the decision of the Supreme Court in Ajendraprasadji N. Pande and Another v. Swami Keshavprakeshdasji N. and Others: (2006) 12 SCC1 In that case, the Supreme Court reiterated the view expressed in Kailash v. Nanhku (supra) and observed that “as held by this Court in Kailash v. Nanhku the trial is deemed to commence when the issues are settled and the case is set down for recording of IA No.5228/2016 in TEST.CAS. 3/2011 Page 7 of 9 evidence”. As stated earlier, the decision in the case of Kailash v. Nanhku (supra) was also referred by the Supreme Court in the later decision in Vidyabai (supra).

18. The decision in the case of Vidyabai (supra) was not considered by this Court in the case of Rajesh Sharma (supra).The decision of the Supreme Court in Vidyabai (supra) authoritatively settles the question as to when trial would commence in the context of the proviso to Order VI Rule 17 of the CPC. In that case, the Court had unequivocally held that the date on which the issues are framed would be the date of first hearing and had proceeded to hold that filing of an affidavit in lieu of examination-in- chief would amount to commencement of proceedings. Thus, it is clear that the trial would commence when an affidavit in lieu of examination-in-chief is filed.

19. This is also the view expressed by the Division Bench of the Bombay High Court in Mahadeo v. Balaji and Anr. :

2012. SCCOnLine Bombay 1283.

20. In the present case, the application was filed on 28.04.2016, which was much prior to the petitioner filing its affidavit of evidence. Clearly, the present application was filed prior to commencement of trial and, therefore, the proviso to Order VI Rule 17 of the CPC is not applicable.

21. In view of the above, the present application is allowed albeit subject to payment of cost of ₹25,000/-. The cost shall be paid within a period of two weeks from today. The applicants shall file the amended objection within a period of two weeks from today. The petitioner may file a rejoinder within a period of two weeks thereafter. IA No.5228/2016 in TEST.CAS. 3/2011 Page 8 of 9 TEST. CAS. 3/2011 22. List for framing of additional issues on 19.07.2017. JULY05 2017 RK VIBHU BAKHRU, J IA No.5228/2016 in TEST.CAS. 3/2011 Page 9 of 9