1 CWP No.10619/08 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR. O R D E R Beni Gopal & Anr. Vs. Addl.District Judege (Fast Track) No.2, Ajmer & Others. S.B. CIVIL WRIT PETITION NO.10619/2008 UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA. DATE OF ORDER ::: 17thJULY,2009 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr.Arvind Gupta for the petitioners. Mr.Resham Bhargava) Mr.Pankaj Jain )for the respondents. **** BY THE COURT: 1. This writ petition has been filed against the order dated 12.08.2008 passed by the Additional District Judge (Fast Track) No.2, Ajmer by which he rejected the application of the plaintiff-petitioners under Order 7 Rule 14 read with Section 151 C.P.C. 2. The plaintiff-petitioners filed suit for partition alleging that will dated 16.10.2001 is forged one as Rameshwar Lal was not able to see, listen, read and understand on that day. 2 CWP No.10619/08 3. The defendant-respondents claimed properties on account of aforesaid will. 4. Both the parties led evidence and during rebuttal evidence by the plaintiff, plaintiff moved an application under Order 7 Rule 14 read with Section 151 CPC and submitted that Rameshwar Lal was incapacitated in signing in 1994 and he used to operate his bank account by thumb impression and this fact came to plaintiffs knowledge in May 2008 and lateron he obtained documents from the bank which may be taken on record and he may be permitted to prove these documents. 5. In reply to this application Defendant No.1 submitted that plaintiff should have led his evidence before rebuttal evidence and further stated that Rameshwar Lal used to sign till his death and further submitted that upto year 2001 he signed many documents as mentioned in para 9 of the reply. 6. The learned trial Court after hearing both the parties rejected application. 7. Heard learned counsel for the parties and perused the record. 8. The learned counsel for the petitioner has submitted that these documents are most relevant in deciding issue relating to genuineness of will and the learned trial Court has committed error in rejection application. 3 CWP No.10619/08 Hence, the writ petition may be accepted and application may be allowed and documents may be taken on record, whereas the learned counsel for the respondents submitted that order passed by the learned trial Court is in accordance with law and further submitted that Article 227 of the Constitution does not confer power to correct error apparent on the face of the record or error of law and this Court cannot act as Court of appeal. Hence, the writ petition may be dismissed. 9. Issue No.5 has been framed by the trial Court which reads as under:- “5.Èया ःवगȸय ौी रामेƳर लाल Ʈारा ूितवादȣ संÉया-1 मदन गोपाल कȧ पƤी ौीमती सीता गग[ के प¢ मɅ कȧ गई वसीयत Ǒदनांक- 16/10/01 वाद पऽ के पैरा संÉया-6 मɅ वǔण[त कारणɉ से अवैध और शूÛय है?” 10. The plaintiff has to prove that alleged will dated 16.10.2001 executed by Rameshwar Lal is illegal and void on account of reasons mentioned in para 6 of the plaint. The plaintiff has mentioned in para 6 of the plaint that on 16.10.2001 Rameshwar Lal was not in position to see, hear, read and understand. No doubt it has no where been mentioned that Rameshwar Lal was not in a position to sign documents on 16.10.2001, but plaintiff has to prove that alleged will is false and fabricated and to prove this fact documents submitted by the plaintiff with his application are relevant to 4 CWP No.10619/08 decide the controversy. 11. Learned counsel for the petitioner placed reliance on (1994) 4 SCC, 659 (Bill Jagan Mohan Reddy v. Billa Sanjeeva Reddy) in which it was held that when the documents are found to be relevant documents which are sought to be produced in the trial Court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any. In the aforesaid case documents were allowed to be taken on record under Order 41 Rule 27 CPC at the appellate stage. In the present case during rebuttal evidence plaintiff wanted to bring on record and prove certain documents which are most relevant to decide the real issue in the controversy which ought to have been taken on record by the trial Court. 12. He further placed reliance on (1960 RLW, 321 Gyaniram vs. Gulab Chand) in which Division Bench of this Court held that Courts should be liberal in admitting documents under Order 7 Rule 14 CPC and courts should not exclude documents which are above suspicion, if they are necessary for the proper decision of the case. 13. On the contrary, learned counsel for the respondents placed reliance on 2007 (5) Maharashtra Law Journal, 801 (Hindoostan Spg. And Wvg. Mills Ltd.Mumbai vs. Hindutan Crown Mills. Siddhivinayak Kamgar Karmachari 5 CWP No.10619/08 Sangharsha Sanghatana & ors.) in which it was held that writ of certiorari jurisdiction is not a writ of right but one of discretion and the object of the writ is to curb excess of jurisdiction, to keep the inferior Courts and tribunals within their bounds and further held that this writ petition is not meant to take place of appeal. I agree with the principles laid down in the aforesaid case, but it has also been held in this case that this writ lies, where the inferior Courts have exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which it was meant to administer and further held that Court may exercise all necessary appellate powers to do substantial justice. Thus, it becomes clear that to do substantial justice documents can be taken on record to decide controversy between the parties. 14. He further placed reliance on 2004 (1) WLC, 389 (Manikyapuri Housing Cooperative Society vs. Mahesh Chaturvedi & Anr.) in which it was held that in exercise of jurisdiction under Article 227 of the Constitution High Court does not correct error apparent on face of record or error of law nor can it act as court of appeal and upheld order of Single Judge. This citation does not help the respondents as in the aforesaid case order of Single Judge refusing 6 CWP No.10619/08 interference was held proper whereas in the present case learned trial Court has committed jurisdictional error in not taking most relevant documents on record. 15. Learned counsel for the petitioners has placed reliance on 1986 RLW, 538 ( M/s Rajasthan Spinning & Weaving Mills Ltd.Bhilwara vs. M/s Rajasthan Textile Industries, Madanganj) in which it was held that ordinarily discretionary orders passed by the trial Court should not be interfered but when order is perverse or is contrary to the provisions of law, interference become inevitable for ends of justice. 16. Learned counsel for the respondents also placed reliance on 2006(3) (Maharashtra Law Journal, 557 Bajaj Auto Ltd. Vs. Shrikant Vinayak Yogi and ors.) in which it was held that when transfer of employee is made otherwise than for no administrative reasons or with malafide intention it gets exposed to challenge and interim relief granted in favour of employee cannot be interfered in certiorari jurisdiction. This citation is not applicable to the facts of the present case. 17. In the light of the aforesaid citations order passed by the trial Court deserves to be set aside. 18. In the light of the above discussion, the writ petition filed by the petitioners is 7 CWP No.10619/08 allowed and order of the trial Court dated 12.08.2008 is set aside and application under Order 7 Rule 14 CPC with Section 151 CPC is allowed subject to cost of Rs.1,000/- and documents filed by the petitioners alongwith application be taken on record and petitioners are permitted to led evidence to the extent of proving these documents. The respondents are also permitted to lead oral as well as documentary evidence in rebuttal to evidence allowed by this application. (K.S. CHAUDHARI),J teekam PS. 8 CWP No.10619/08