RVPET--315/2013. Case: NUTAN KUMAR AND ANR. Vs. RAJESH ARORA AND ORS.. High Court of Delhi (India)
| Case Number | RVPET--315/2013 |
| Citation | NA |
| Judgement Date | May 30, 2014 |
| Court | High Court of Delhi (India) |
A-1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 28.03.2014
Judgment delivered on : 30.05.2014 REVIEW PET. 315/2013
NUTAN KUMAR AND ANR. ……Appellants/ Review Petitioner
Through: Mr.V.S.Chauhan and Mr. N.Chaudhary,
Advocates.
Versus
RAJESH ARORA AND ORS …….Respondents
Through: Mr.Sumit Bansal and Mr.Ateev Mathur,
Advocates.
CORAM:
HON’BLE MR.JUSTICE S.RAVINDRA BHAT
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
C.M. No.9386/2013 (exemption)
1 Exemption is allowed subject to just exceptions. Application disposed of.
C.M. No.9385/2013 (for condonation of 92 day’s delay in filing review petition)
2 This application seeks condonation of delay of 92 days in preferring this review petition. Submission being that the petition is in time if the period of limitation is counted from 22.4.2013 which was the date of the order passed by the Supreme Court permitting the appellant to file the review petition. Accordingly condonation of delay has been sought. Reply has not been filed in spite of opportunity. There is also
Review. Pet. No.315/2013 Page 1 of 16
no substantial opposition to this application. In view thereof, the delay is condoned.
REV.PET. No.315/2013
3 Nutuan Kumar (hereinafter referred to as the “petitioner”) seeks a review of the order dated 11.01.2013 vide which the appeal filed by the petitioner seeking setting aside of the order dated 25.3.2009 (wherein the probate petition filed by Rajesh Arora-hereinafter referred to as the “respondent”-seeking probate of the will (Ex.PW-4/3) dated 11.6.1995 of his father Tilak Raj had been decreed) was dismissed.
4 Petitioner aggrieved by the said order had filed a Special Leave Petition. On 22.4.2013 the Supreme Court had passed the following order.:
“Learned counsel for the petitioners states that he has raised many issues which have not been dealt with by the High Court particularly in respect of application of Section 91 of the Evidence Act. We do not see any reference to any of such submissions made by the High Court.
In view of above, learned counsel for the petitioners prays for and is permitted to withdraw the special leave petition with a liberty to file review petition. In case the learned counsel for the petitioners has argued anything which has not been dealt by the High Court, the High
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Court may proceed and decide the review application in accordance with law.
It is made clear that we have not expressed any opinion on the merits of the case.”
5 Accordingly, the present petition has been filed.
6 The grounds of review are contained in sub-paras (A) to (Q) running into almost 20 pages. Most of these grounds relate to arguments which had already been addressed at the time when the order dated 11.01.2013 was passed. Written submissions have also been filed. They are largely based on the version of PW-4. The following two-fold vehement submission has been made by the learned counsel for the petitioner, before this Court:
i. The evidence has not been correctly appreciated; mandatory provisions of Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act have not been adverted to. Attention has been drawn to the various portions of the testimony of PW-4. To support his argument, learned counsel for the petitioner has placed reliance upon (1994) 5 SCC 135 Bhagwan Kaur Vs. Kartar Kaur & Ors. and (2003) 12 SCC 35 Bhagat Ram and
Review. Pet. No.315/2013 Page 3 of 16
Another Vs. Suresh and Ors.; the submission being that a will is required to be proved according to the provisions of Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act; the attesting witness must have the requisite animus testandi to attest the document at the time when he attested it; the registration of the document will not obviate these mandatory clauses.
ii. Section 91 of the Indian Evidence Act has been ignored, the effect of which would be that oral evidence contrary to a written document cannot be looked into; the submission being that Balbir Singh was also an attesting witness as is evident from Ex.PW-4/3.
7 Arguments have been refuted by the learned counsel for the respondent. It is pointed out that on no count does the order under challenge call for any review, the submission being unless and until there is a patent perversity or an error manifest on the face of the record, the parameters for review as contained under Section 114 of the Code of Civil Procedure...
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