1. The present Revision has been preferred by the petitioners, being aggrieved by the fair and decreetal order dated 8.6.1998 made in unnumbered I.A of 1998 (SR. No. 1170 of 98) in O.S No. 239 of 1986 on the file of the Subordinate Court, Karur.
2. The petitioners are the defendants 2 and 3 in the said original suit. The respondent is the plaintiff in the said suit. The parties to this Revision will be referred to as arrayed before the trial court. The plaintiff instituted the suit O.S No. 239 of 1986 against fourteen defendants for partition and separate possession of their 1/4th share and for other consequential reliefs. The suit came to be instituted as early as 17th November 1986. The 3rd defendant had filed a written statement on 22.12.1991 The 3rd defendant had also filed an additional written statement on 14.11.1997 It is not necessary to detail the case and counter case of either parties for the purpose of deciding this Revision Petition and it would be sufficient to mention that the contesting defendants put forward a Will executed by Palanimalai Gounder through and by which they resist the suit claim among other defences.
3. The plaintiff served notice on the defendants 2 and 3 calling upon them to produce the will put forward by them in the written statement by notice dated 12.3.1998 and the same has been filed into court, after serving on the counsel for the defendants 1,2, & 3, Thereafter on 23rd March 1998, the plaintiff had filed a reply statement into Court, wherein the plaintiff specifically pleaded for the first time that the alleged Will executed by Palanimalai dated 9.6.1985 is forged, created, concocted and fabricated document. The plaintiff also pleaded that the signature of Palanimalai Gounder in the will has been forged and the unregistered Will being a forged document will not confer any right over the suit property. It is to be stated that prima facie burden is on the defendants, who rely upon the Will to prove due execution and attestation by the testator, even if the Will is not admitted. However, in the present case serious challenge has been made only in the reply statement.
4. At that stage, in the light of the specific challenge to the Will in the reply statement, the 3rd defendant took out an interlocutory application in the said suit in S.R No. 1170 of 1998 praying the learned Sub-ordinate Judge of Karur to send the disputed Will dated 9.6.1985 for the opinion of the Government hand writing expert, Chennai along with other admitted signatures of the testator, Palanimalai Gounder. The defendants 2 and 3 also filed another interlocutory application praying for appointment of a Commissioner to take the Will dated 9.6.1985 to the Government Handwriting expert at Chennai, along with documents containing the admitted signature for the purpose of getting the expert opinion.
5. The said applications were filed into Court on 31.3.1998 and were returned by the Court and re-presented on 6.4.1998 as well as on 20.4.1998 On 21.4.1998, the counsel for the petitioners made an endorsement that the interlocutory application may be called in open Court. Notice was given to other side and the two interlocutory applications, which remain, un-numbered were called before the Public Court on 8.6.1998 as per the orders of the Court dated 28.4.1998 On 8.6.1998 the Court below, after hearing the counsel for the petitioners in the two interlocutory applications, rejected the same. Being aggrieved by the order of rejection, the present Revision Petition has been preferred by the defendants 2 and 3 in the suit.
6. Heard Mrs. P. Bagyalakshmi, learned counsel appearing for the petitioner and Mr. T.R Rajaraman, learned counsel appearing for the caveator.
7. The Court below without numbering the applications had rejected the same on the sole reasoning that till the commencement of trial, the 3rd defendant has not taken steps to produce the Will or to send the Will for expert opinion and that the petition is belated. In that view, the application has been rejected, when the applications are in order. This Court is unable to appreciate the rejection of the application without numbering the interlocutory applications on the ground of delay. There is no valid reason not to take up the applications on its file. It is not as if the applications are not maintainable.
8. It is true that the suit is of the year 1986 and the suit is pending for the past 12 years and both sides have contributed for the same. The parties have been permitted to file the written statement at their will. In fact the written statement of the 3rd defendant had been filed on 2nd December 1991. The 3rd defendant had filed additional written statement on 14th November 1997. The plaintiff had filed an additional reply statement on 23rd March 1998, Thereafter these two interlocutory applications had been filed on 31st March 1998. The applications were returned and kept un-numbered and which were called in the public court on 8.6.1998
9. There is force in the contentions raised by the counsel for the Revision Petitioners in submitting that the applications cannot be rejected as belated, when they are maintainable and there are no latches on the part of the petitioners in this regard. The counsel for the petitioner is justified in pointing out that the specific plea of forgery as well as fabrication had been put forward only in the reply statement filed on 23rd March 1998 and such a specific plea is being raised for the first time.
10. Though this Court is not prepared to accept the entirety of the contentions, however, it would suffice to state that there is prima facie case for the revision petitioners to come forward with two interlocutory applications at this stage and it cannot be thrown out as belated. It is equally true that the suits had been taken up for trial on 12.3.1998 and the examination of witnesses commenced and it is being continued.
11. It has also to be pointed out that the issue in the suit has been framed during 1993 as to whether the Will is true, valid, genuine and binding. Therefore, it is obligatory on the part of the propounder of the Will to prove that the Will was validly executed and attested.
12. Merely because the applications were filed at the time of trial to which every one of the parties and their counsel have contributed, the Court below ought not to have rejected interlocutory applications without entertaining the same. The object of the Court should be to render substantial justice and sufficient opportunity should be afforded to prove the disputed Will. As already pointed out not only the party but also the counsel appearing for the parties on either side have contributed for the delay and present situation, not to speak of the delay in Courts and not to speak of the innumberable boycotts resorted to by the members of Bar which at times results in unexpected results or consequences.
13. In the foregoing circumstances, taking into consideration of totality of the facts and circumstances, set out above and without expressing anything on merits, the order of the Court below under Revision is set aside, and the matter is remitted back to the Court below for fresh consideration of the interlocutory applications on merits and according to law, after hearing either side.
14. The Civil Revision Petition is allowed and remitted back to the Court below for early orders. The Court below shall first consider the applications on merits, pass orders and proceed further according to law.