Arun Kathuria & Ors. vs Sunita Kathutia Through Lr Namely Ramani Kathuria
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07.09.2026
Date of Decision: 15.10.2026
Date of Uploading: 16.10.2026
# CNR No. DLHC010111392026
+ CM(M) 587/2026, CM APPL. 60123/2026 & CM APPL.
60283/2026
ARUN KATHURIA & ORS. .....Petitioners
Through: Mr. Rakesh Malhotra,
Mr. Bharat Malhotra,
Mr. Kushal Malhotra,
Ms. Poorvi and Ms. Riya, Advs.
versus
SUNITA KATHUTIA THROUGH LR NAMELY RAMANI
KATHURIA .....Respondent
Through: Ms. Smiti Verma, Mr. Udayvir
Rana and Mr. Samyak Jain,
Advs.
# CNR No. DLHC010116982026
+ CM(M) 623/2026, CM APPL. 60124/2026 & CM APPL.
60284/2026
MADHU KOHLI (SINCE DECD) THR LRS
& ANR. .....Petitioners
Through: Mr. Rakesh Malhotra,
Mr. Bharat Malhotra,
Mr. Kushal Malhotra,
Ms. Poorvi and Ms. Riya, Advs.
versus
SUNITA KATHURIA (SINCE DECD) THR LR &
ORS .....Respondents
Through: Ms. Smiti Verma, Mr. Udayvir
Signature Not Verified
CM(M) 587/2026 & CM(M) 623/2026 Page 1 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
Rana and Mr. Samyak Jain,
Advs.
CORAM:
HON'BLE MR. JUSTICE AJAY DIGPAUL
J U D G M E N T
%
1. The present connected petitions, being CM(M) 587/2026, titled
Arun Kathuria & Ors. v. Sunita Kathuria (since deceased) through
her LR and CM(M) 623/2026, titled Madhu Kohli & Anr. v. Sunita
Kathuria (since deceased) through her LR , assail the common order
dated 20.02.2026 passed by the learned District Judge-14, LAC,
Central District, Tis Hazari Courts, Delhi in CS DJ No. 230/2016,
titled Sunita Kathuria v. Arun Kathuria & Ors. , whereby the learned
Trial Court dismissed the applications under Order VIII Rule 1A of
1
the Code of Civil Procedure, 1908 seeking to place on record the
Final Report/Cancellation Report dated 02.07.2015 along with the
documents filed by the Investigating Officer, and also dismissed the
application under Order XVI of the CPC seeking permission to
summon Shri Tarun Babbar, son of late Shri L.N. Babbar, as a witness
in relation to the signatures of Shri L.N. Babbar appearing on the Will
dated 15.05.1996.
2. The brief facts leading to the filing of the present petitions are
as follows.
3. The respondent and her mother, late Smt. Sunita Kathuria,
instituted CS(OS) No. 2440/2007 in respect of property bearing No. 4-
B/1, Ganga Ram Hospital Marg, New Delhi. The suit, as originally
instituted, sought cancellation of the Will dated 17.05.1996 stated to
1
Hereinafter „CPC‟
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CM(M) 587/2026 & CM(M) 623/2026 Page 2 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
have been executed by late Smt. Kunti Devi and a decree of
permanent injunction restraining the petitioners from creating any
third-party rights in the said property.
4. The respondents/plaintiffs moved an application under Order VI
Rule 17 CPC which came to be allowed, and the suit was amended to
incorporate a claim for partition of the estate of late Smt. Kunti Devi.
In respect of property bearing No. 4-B/1, Ganga Ram Hospital Marg,
a preliminary decree for partition and a declaration of the share
claimed by the plaintiffs were sought, along with partition and
separate possession or, in the alternative, sale of the property and
distribution of the sale proceeds. The amended plaint also sought
partition of the movable properties, a declaration that late Smt. Kunti
Devi had died intestate and that the Will dated 17.05.1996 was not
genuine or binding, and a permanent injunction against alienation or
creation of third-party rights in the properties forming part of her
estate.
5. It has been stated that the dispute in the suit is thus centred,
inter alia , on the Will dated 15.05.1996, which was registered on
17.05.1996 before the Sub-Registrar, Kashmere Gate, Delhi. By the
said Will, late Smt. Kunti Devi dealt with property bearing No. 4-B/1,
Ganga Ram Hospital Road, New Delhi and her other movable and
immovable properties, bequeathing different portions of the property
to her sons. The Will bears the signatures of Shri J.R. Nangia and Shri
L.N. Babbar, Advocate, as attesting witnesses.
6. The dispute concerning the Will also resulted in criminal
proceedings. The respondents instituted a criminal complaint,
pursuant to which FIR No. 40/2011 was registered on 26.03.2011 at
P.S. Rajinder Nagar under Sections 420/468/471/120-B/34 IPC. The
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CM(M) 587/2026 & CM(M) 623/2026 Page 3 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
investigation included examination of the Will and other documents
and the obtaining of an FSL report dated 23.04.2015. The
Investigating Officer thereafter filed Final Report/Cancellation Report
No. 99 dated 02.07.2015 before the learned Metropolitan Magistrate,
along with the material collected during investigation, including
statements of persons connected with the Will.
7. The Cancellation Report did not bring the criminal proceedings
to an end. Thereafter, the respondents filed a protest petition against
the Final Report and vide order dated 20.03.2021, the learned
Metropolitan Magistrate treated the protest petition as a complaint
under Section 200 of the Code of Criminal Procedure, and granted an
opportunity to the respondents/complainants to lead pre-summoning
evidence.
8. The said order was challenged by the respondent in Criminal
Revision No. 158/2021 under Section 397 of Code of Criminal
Procedure, 1973 whereby the learned revisional court vide order dated
25.11.2021 directed that an amended memo of parties be filed
showing the persons sought to be proceeded against. The amended
memo of parties was filed on 08.08.2023 before the successor Court,
and a copy of the revision petition was furnished to the petitioners.
9. It has been stated by the petitioners that the copy of the revision
petition so furnished contained only the first nine pages of the Final
Report/Cancellation Report and did not contain the complete set of
documents filed by the Investigating Officer. The petitioners entered
appearance before the Revisional Court on 19.09.2023. The revision
proceedings thereafter continued, and the Trial Court record of the
criminal complaint was summoned before the Revisional Court.
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CM(M) 587/2026 & CM(M) 623/2026 Page 4 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
10. On 10.07.2024, the petitioners filed an application seeking
certified copies of the complete record relating to the criminal
proceedings. On 25.07.2024, only the order sheets were supplied. The
petitioners thereafter applied through counsel for the remaining
documents on 03.09.2024, and the copying agency supplied the
documents on 04.10.2024. The material obtained included the
documents accompanying the Final Report/Cancellation Report,
including the statement of Shri L.N. Babbar dated 20.05.2010.
11. The civil proceedings had, in the meantime, progressed. Issues
had been framed on 16.11.2010 and the parties proceeded with their
evidence. The petitioners' list of witnesses included, inter alia,
witnesses from the office of the Sub-Registrar, the CFSL and the
criminal court in relation to FIR No. 40/2011 and the Cancellation
Report. Their evidence was closed on 13.12.2018.
12. The suit thereafter proceeded towards final arguments. On
02.02.2019, the application under Order XIV Rule 5 CPC was filed
which was subsequently withdrawn in 2023 and the matter was again
fixed for final arguments. The matter was listed for final arguments on
07.02.2024, and part arguments were heard on 24.04.2024.
13. On 13.11.2024, the petitioner filed an application under Order
VIII Rule 1(A) seeking leave to place the Final Report/Cancellation
Report dated 02.07.2015 and the documents accompanying it on
record was taken up before the learned Trial Court. The application
also sought permission to summon the concerned record clerk/Ahlmad
for proving the said documents.
14. The learned Trial Court dismissed the said application by order
dated 18.11.2025. Thereafter, the petitioners in December 2025 filed
an application seeking review and recall of the said order. By order
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CM(M) 587/2026 & CM(M) 623/2026 Page 5 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
dated 07.01.2026, the learned Trial Court recalled the order dated
18.11.2025 and permitted fresh applications to be filed.
15. In the meantime, the criminal proceedings had also concluded.
The learned JMFC-03, Central District, Tis Hazari Courts, dismissed
the complaint by order dated 17.10.2025. Consequent thereto, the
learned ASJ-04, Central District, Tis Hazari Courts, dismissed
Criminal Revision No. 158/2021 as infructuous by order dated
19.11.2025.
16. Pursuant to the order dated 07.01.2026, fresh applications were
filed seeking leave to place on record the Final Report/Cancellation
Report dated 02.07.2015 and the documents filed by the Investigating
Officer. The petitioners in CM(M) 587/2026 also sought permission to
re-summon the record clerk/Ahlmad from the criminal court for
proving the said documents.
17. A separate application was filed by the petitioners, the rejection
of which is the subject matter of challenge in CM(M) 623/2026
seeking permission to summon Shri Tarun Babbar, son of late Shri
L.N. Babbar, as a witness in relation to the signatures of Shri L.N.
Babbar appearing on the Will. The application was founded upon the
circumstance that Shri Tarun Babbar had furnished an affidavit
concerning his familiarity with the signatures of his deceased father.
18. The learned Trial Court considered the aforesaid applications
and, by the common order dated 20.02.2026, dismissed the
applications seeking to place the Final Report/Cancellation Report
dated 02.07.2015 and the accompanying documents on record. The
application seeking permission to summon Shri Tarun Babbar was
also dismissed. The suit was thereafter directed to be listed for final
arguments on 25.03.2026. The learned trial court noted that the
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CM(M) 587/2026 & CM(M) 623/2026 Page 6 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
applications have been filed at a belated stage and are impermissible
in law.
19. Aggrieved by the aforesaid order, the present petitions have
been filed. CM(M) 587/2026 assails the rejection of the applications
seeking to place the Final Report/Cancellation Report dated
02.07.2015 and the accompanying documents on record, whereas
CM(M) 623/2026 assails the rejection of the separate application
seeking permission to summon Shri Tarun Babbar as a witness in
relation to the signatures of Shri L.N. Babbar on the Will. The
petitions thus arise from the same order dated 20.02.2026, though the
applications forming the subject matter of challenge are distinct.
20. Learned counsel for the petitioners submits that the learned
Trial Court has adopted a restrictive approach while considering the
applications under Order VIII Rule 1A(3) CPC and Order XVI Rule
1(3) read with Rule 1A CPC. It is submitted that the applications did
not seek to introduce a new case, but sought to place before the
learned Trial Court documents which were central to the main issue
already arising in the suit, namely, the execution and genuineness of
the Will dated 15.05.1996.
21. Learned counsel submits that the complete Final
Report/Cancellation Report dated 02.07.2015 and the documents
accompanying it were not in the possession of the petitioners at the
stage when the documents were required to be produced. In the
criminal revision proceedings, the petitioners had initially been
furnished only the first nine pages of the Final Report. The complete
Final Report was obtained only after certified copies of the criminal
court record were applied for in 2024, with the Final Report being
supplied on 04.10.2024. The application for bringing the said Report
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CM(M) 587/2026 & CM(M) 623/2026 Page 7 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
on record was thereafter moved on 12.11.2024. It is, therefore,
submitted that the learned Trial Court ought to have considered the
circumstances in which the documents became available instead of
treating the stage of the civil proceedings as determinative.
22. Learned counsel submits that the documents sought to be
produced are not collateral to the suit. The Final Report contains, inter
alia, the statement of Shri L.N. Babbar, one of the attesting witnesses
to the Will. The material therefore bears directly upon the execution
and attestation of the very document whose genuineness is in issue.
According to learned counsel, permitting the documents to be taken on
record would enable the learned Trial Court to adjudicate the
underlying controversy on the material bearing upon it, whereas their
exclusion would result in the Court examining the validity of the Will
without considering documents directly connected with its execution.
23. Reliance is placed upon Sugandhi (Dead) by LRs. & Anr. v. P.
2
Rajkumar and Levaku Pedda Reddamma & Ors. v. Gottumukkala
3
Venkata Subbamma & Anr. , to submit that the power under Order
VIII Rule 1A(3) CPC is discretionary and is intended to permit
production of relevant documents at a later stage when those
documents were not earlier in the possession of the party seeking to
produce them . Learned counsel submits that the Court is required to
consider the explanation for non-production and the relevance of the
documents, and that procedural delay can, where necessary, be
addressed by imposing appropriate terms rather than by excluding
relevant material altogether.
2
(2020) 10 SCC 706
3
Civil Appeal No. 4096/2022
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CM(M) 587/2026 & CM(M) 623/2026 Page 8 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
24. Learned counsel submits that the same approach ought to have
been adopted with respect to the application under Order XVI Rule
1(3) read with Rule 1A CPC. Both attesting witnesses to the Will were
no longer available. After obtaining the complete criminal record,
including the statement of Shri L.N. Babbar, efforts were made to
trace a person acquainted with his signatures. Shri Tarun Babbar, his
son, was eventually contacted and furnished an affidavit concerning
his familiarity with his father's signatures. The application, therefore,
according to learned counsel, was directed to a specific and limited
purpose connected with proof of the Will and was not an attempt to
introduce an unrelated witness or a fresh factual case.
25. Learned counsel submits that the fact that the suit had reached
the stage of final arguments could not, by itself, justify rejection of the
application. The proposed evidence relates to an issue already before
the learned Trial Court, and the petitioners had taken steps to secure
the material and the witness once they became available. Reliance is
4
also placed upon Mohammed Abdul Wahid v. Nilofer & Anr. , to
submit that procedural provisions must be applied keeping in view the
object of adjudicating the real controversy between the parties.
26. Learned counsel further submits that any prejudice caused to
the respondent by permitting the documents to be brought on record or
the witness to be examined can be addressed by granting an
opportunity to meet the material and by imposing appropriate terms.
Complete exclusion of the material, according to learned counsel,
would have the effect of preventing consideration of evidence directly
bearing upon the genuineness and execution of the Will.
4
2023 INSC 1075
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CM(M) 587/2026 & CM(M) 623/2026 Page 9 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
27. Learned counsel accordingly submits that the impugned order
proceeds on a restrictive approach to the exercise of discretion under
Order VIII Rule 1A(3) and Order XVI CPC. The petitioners, it is
submitted, have explained the circumstances in which the complete
documents became available, have taken steps thereafter to place them
before the Court, and have also made efforts to trace a witness capable
of addressing the signatures of the deceased attesting witness. It is
submitted that there has been no intent on part of the petitioners to
delay the trial court proceedings. It is accordingly prayed that the
impugned order dated 20.02.2026, insofar as it rejects the aforesaid
applications, be set aside and the applications be allowed, subject to
such terms as this Court may consider appropriate.
28. Per Contra, Learned counsel for the respondent, at the outset,
submits that the present petitions do not warrant interference under
Article 227 of the Constitution. The impugned order concerns the
exercise of discretion by the learned Trial Court on applications
seeking production of documents and summoning of an additional
witness after the petitioners had already concluded their evidence and
the matter had proceeded to final arguments. It is submitted that no
jurisdictional error or perversity is disclosed so as to warrant
interference in exercise of the supervisory jurisdiction of this Court.
29. Learned counsel submits that the petitioners' case that they
acquired knowledge of the Final Report only in 2024 is not borne out
from the chronology of the proceedings. The Final
Report/Cancellation Report dated 02.07.2015 was itself filed in the
criminal proceedings arising out of the dispute concerning the Will,
and the petitioners were parties to and participating in those
proceedings. The criminal proceedings thereafter continued before the
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CM(M) 587/2026 & CM(M) 623/2026 Page 10 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
learned Magistrate and, subsequently, before the Revisional Court.
The petitioners' own case is that they entered appearance in the
revision proceedings on 19.09.2023, after the amended memo of
parties was filed on 08.08.2023, and that a copy of the revision
petition was furnished to them.
30. Learned counsel submits that the fact that the copy furnished in
the revision proceedings contained only the first nine pages of the
Cancellation Report does not mean that the petitioners were unaware
of the Final Report itself. It only explains the delay in procuring the
remaining portion of the Final Report. The distinction is material: the
petitioners' case of subsequent knowledge cannot be equated with
subsequent acquisition of a complete copy of a report whose existence
and filing were already known to them. The petitioners thereafter
obtained the remaining material on 04.10.2024 by applying for
certified copies.
31. It is submitted that this chronology assumes significance
because the petitioners did not move the learned Trial Court
immediately upon obtaining the complete material in the criminal
proceedings in 2023. More importantly, their evidence in the civil suit
had already been closed on 13.12.2018. The respondent therefore
submits that the subsequent procurement of the complete record
cannot, by itself, furnish an explanation for why material relating to
the same controversy should be introduced after the petitioners had
already consciously brought their evidence to an end.
32. To buttress his arguments and submit that the parties cannot be
allowed to fill the lacunae of their evidence, learned counsel has
placed reliance on two judgments of Co-ordinate Benches of this
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CM(M) 587/2026 & CM(M) 623/2026 Page 11 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
5
Court in SBI v SC Goel and Scindia Potteries & Services P. Ltd. v
6
JK Jain & Anr. .
33. Learned counsel submits that the same chronology is even more
significant with respect to the application seeking summoning of Shri
Tarun Babbar. Shri L.N. Babbar was an attesting witness to the Will
and died in 2015. The petitioners were aware of his death.
Consequently, from 2015 itself, the petitioners were aware that Shri
L.N. Babbar could not be examined as an attesting witness and that, if
the Will was to be proved, the requirements governing proof of an
attested document in the absence of the attesting witness would have
to be addressed. The requirements of Sections 68 and 69 of the Indian
Evidence Act, 1872 (corresponding to sections 67 and 68 of the
Bharatiya Sakshiya Adhiniyam, 2023) therefore did not arise for
consideration for the first time when the application for summoning
Shri Tarun Babbar was filed.
34. Learned counsel submits that the petitioners' subsequent attempt
to trace Shri Tarun Babbar cannot, therefore, be treated as a
circumstance which rendered the proposed evidence unavailable
earlier. Once the death of Shri L.N. Babbar was known, and his status
as an attesting witness was known, the petitioners were aware of the
evidentiary difficulty which his death presented. They nevertheless
proceeded with the trial and voluntarily closed their evidence on
13.12.2018. The attempt, thereafter, to introduce his son as a witness
for identification of Shri L.N. Babbar's signatures, according to
learned counsel, amounts to an attempt to supplement evidence after
5
CM(M)2278/2025
6
(2012) SCC Online Del 5296
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CM(M) 587/2026 & CM(M) 623/2026 Page 12 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
the petitioners had themselves elected to conclude their evidentiary
case.
35. Learned counsel further submits that this is not merely a case of
permitting a formal witness to prove a document. The proposed
evidence is intended to supply a mode of proof of the signatures of a
deceased attesting witness to the Will. The petitioners had the
opportunity to address the manner in which the Will was to be proved
during their evidence. Having closed their evidence, they cannot seek
to cure a lacuna in their evidence by introducing another witness at the
stage of final arguments. The power under Order XVI CPC, it is
submitted, cannot be exercised so as to permit a party to fill up such a
lacuna after the evidentiary stage has been voluntarily brought to an
end.
36. To buttress his arguments and to contend that after closing of
evidence, parties cannot be allowed to lead further evidence in order
to fill in the lacunae in their cases, the learned counsel has relied upon
7
the case of K. Bharathamma v. Bandaru Sakku Bai and Nikita Jain
8
v. Ram Phal .
37. Learned counsel has submitted that the applications under Order
VIII Rule 1A(3) and Order XVI CPC ought to be considered in the
context of the entire chronology. The petitioners were aware of the
criminal proceedings and the Final Report; they subsequently obtained
the complete record, but only after the civil evidence had long since
been closed. They were aware of the death of Shri L.N. Babbar in
2015 and of the consequent requirement of proving the Will in
accordance with law, yet proceeded to close their evidence in 2018.
7
2026 SCC Online SC 1484
8
CM(M) 2292/2025
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CM(M) 587/2026 & CM(M) 623/2026 Page 13 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
The respondent therefore submits that the learned Trial Court was
justified in treating the applications as belated attempts to supplement
the petitioners' case rather than as circumstances warranting reopening
of the trial.
38. Learned counsel for the respondent has submitted that the
impugned order consequently discloses no such jurisdictional error,
perversity or material irregularity as would justify interference under
Article 227 of the Constitution. The present petitions, it is submitted,
are therefore liable to be dismissed.
39. Heard learned counsel for the parties and perused the records.
40. Upon a conspectus of the arguments advanced, the principal
question which arises for consideration is whether, in the facts and
circumstances of the present case and having regard to the stage of the
proceedings and the objections raised by the respondent, the learned
Trial Court was justified in declining to exercise its discretion under
Order VIII Rule 1A(3) and Order XVI of the CPC.
41. Before proceeding further, it is pertinent to note that the power
to permit production of documents or examination of a witness at a
stage subsequent to the stage of evidence is subject to judicial
scrutiny. The mere relevance of a document or a witness cannot, by
itself, furnish a ground for permitting a party to reopen its evidence.
The Court is required to consider the explanation for the delay, the
stage of the proceedings, the nature of the material sought to be
introduced, the effect of disallowing the additional documents or
witnesses to the party‟s case and the prejudice which may be caused to
the opposite party. At the same time, the procedural requirements
governing the conduct of a trial cannot be applied in a manner which
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
prevents the Court from effectively adjudicating the controversy
which is already before it.
42. The Supreme Court in Sugandhi (Dead) by LRs. v. P.
Rajkumar (supra) , has emphasised the need to adopt an approach
which furthers substantial justice while considering an application for
production of documents under Order VIII Rule 1A(3) CPC.
Similarly, in Levaku Pedda Reddamma & Ors. v. Gottumukkala
Venkata Subbamma & Anr. (supra) , the Supreme Court has
recognised that the relevance of documents sought to be produced at a
later stage may be considered by the Trial Court and that the delay in
production can, in an appropriate case, be addressed by imposing
costs. The aforesaid principles, however, cannot be understood to
mean that a party is entitled to introduce material at any stage merely
because such material has some relevance to the dispute.
43. It is, however, not necessary for this Court, while exercising
jurisdiction under Article 227 of the Constitution, to return a
conclusive finding as to the precise extent of the petitioners'
knowledge of the Final Report or as to the circumstances in which the
complete report and the accompanying material came to be obtained.
What is of significance is that the material sought to be produced
emanates from the criminal proceedings concerning the very Will
which forms part of the controversy before the learned Trial Court.
The documents are, therefore, not sought to be introduced to set up an
entirely new case or to bring into the suit a controversy which was
hitherto absent. Their relevance and their ultimate evidentiary effect
would remain matters for consideration by the learned Trial Court.
The circumstance that the complete material was obtained
subsequently, particularly when the respondent would have an
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
opportunity to meet the same, would not, in itself, justify its exclusion
from consideration.
44. This Court is conscious that the petitioners had already closed
their evidence and that the matter had progressed to the stage of final
arguments. Ordinarily, the Court ought to be circumspect in
permitting a party to reopen its evidence at such an advanced stage.
However, the question is not merely whether the applications are
belated. The Court must also consider whether the material sought to
be introduced is such as would assist in the adjudication of the
controversy already before the Court and whether the prejudice
occasioned to the opposite party can be adequately safeguarded.
45. The same consideration assumes significance in respect of the
prayer for summoning Shri Tarun Babbar. The respondent has
submitted that Shri L.N. Babbar, who was an attesting witness to the
Will, had expired in 2015; that the petitioners were aware of his death;
and that, notwithstanding such knowledge, the petitioners proceeded
with the trial and voluntarily closed their evidence on 13.12.2018. It
is, therefore, contended that the attempt to summon Shri Tarun Babbar
at this stage amounts to an attempt to fill a lacuna in the evidence.
46. The aforesaid objection cannot be brushed aside, as a party
cannot be permitted to reopen its evidence merely to fill a lacuna in its
case. The question, however, is whether the proposed evidence seeks
to introduce a new factual foundation or to establish a matter already
in issue before the learned Trial Court. In the present case, Shri Tarun
Babbar is sought to be examined only to identify the signatures of his
father, Shri L.N. Babbar, an attesting witness to the Will, which is
already on record. The proposed examination, therefore, seeks to
establish an existing document and does not, by itself, introduce a new
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
case. Whether the testimony is sufficient to establish the signatures,
whether Shri Tarun Babbar possesses the requisite familiarity with
them, and whether the requirements of Sections 67 and 68 of the
Bharatiya Sakshya Adhiniyam, 2023, are satisfied, would remain for
determination by the learned Trial Court.
47. In the present case, the respondent would have an opportunity
to cross-examine Shri Tarun Babbar, to question his familiarity with
the signatures of his father and to raise all objections available in law
concerning the admissibility and sufficiency of his testimony. The
respondent would similarly have an opportunity to meet the
documents sought to be brought on record and to make all
submissions available in law in relation thereto.
48. In the opinion of this Court, the learned Trial Court has adopted
a somewhat restrictive approach by treating the stage of the
proceedings and the delay in seeking to introduce the material as
determinative, without sufficiently examining its relevance to the
controversy in issue. While a belated application does not warrant
acceptance as a matter of course, the materiality of the evidence
sought to be adduced must be duly considered in determining whether
its production, on appropriate terms, would facilitate the adjudication
of the dispute on merits.
49. At this juncture, it is relevant to consider the authorities relied
upon by the respondent. The respondent‟s reliance on SBI (supra) and
Scindia Potteries (supra) is untenable in view of the authoritative
rulings of the Hon‟ble Supreme Court in Sugandhi (supra) and
Levaku Pedda Reddamma & Ors (supra) wherein the Hon‟ble
Supreme Court has stated that additional documents can be taken on
record in order to bring out the real controversy of the case, and that
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
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procedural mistakes should not defeat the ends of substantive justice.
Infact, a Co-ordinate Bench of this Court in Vinod Bhatia & Anr. v
9
Punjab and Sindh Bank & Anr. while following the law laid down
by the Hon‟ble Supreme Court in Sugandhi (supra) allowed the
additional documents filed under Order VII Rule 14(3) subject to
payment of costs.
50. The respondent‟s reliance on K. Bharathamma (supra) and
Nikita Jain (supra) is untenable as both the cases pertain to an
application under Order XVIII Rule 17 CPC and furthermore, in both
the cases the courts had held that the parties cannot be allowed to fill
in the lacunae in their cases. However, once this Court has held that
the petitioners were not trying to fill a lacuna and are simply seeking
to summon the son of an attesting witness, the above cited cases do
not become applicable.
51. It is also relevant to consider that a Division Bench of this Court
10
in Sudesh & Ors v Vijender Singh & Ors. has dealt with an issue
where an application under Order XVI for summoning of the sole
attesting witness in a dispute regarding the will was dismissed. The
Hon‟ble Division Bench noted inter-alia as follows –
“24. The exercise of judicial discretion to admit evidence, after
evidence has been closed, is well settled. Such discretion must be
exercised judiciously, balancing the need to avoid procedural
gamesmanship and delay against the overriding requirement that
material evidence bearing on the real controversy be placed before
the Court for adjudication on merits. In determining whether to
allow evidence to be re-opened, the Court must consider:
i. the materiality of the evidence sought to be adduced;
ii. the bona fides of the party seeking to re-open evidence;
iii. iii. whether the opposing party would suffer prejudice of an
irreversible kind; and
9
2026 SCC OnLine Del 3412
10
2025 SCC Online Del 6160
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57
iv. whether reasonable safeguards and time-bound directions
can be fashioned to mitigate any risk of prejudice of delay.
25. Applying the above principles to the facts of the present
case, it is evident that the proposed evidence is highly material.
The Will dated 24.05.2002 is the foundation of the dispute and
attestation by Shri Ajay Gopal, the sole surviving attesting witness
is central to establishing its execution and validity. The attesting
witness is not only alive but has no voluntarily expressed
willingness to depose, thereby placing the Appellants in a position
to present evidence that was previously inaccessible through no
fault of their own.
28. While the Respondents are correct that procedural remedies
under Order XVI Rules 10 and 12 exist, the mere existence of such
remedies does not preclude the Court from exercising its discretion
to admit evidence when justice so requires. The overriding
objective is to ensure adjudication on the merits rather than to
allow procedural technicalities to frustrate the presentation of
crucial evidence.”
52. Thus, the principles laid down by the Hon‟ble Supreme Court in
Sugandhi (supra) and Levaku Pedda Reddamma & Ors (supra) . , and
followed by the Co-ordinate Bench of this Court in Vinod Bhatia &
Anr. v. Punjab and Sindh Bank & Anr. (supra) , reiterate that
procedural requirements ought not to be applied so rigidly as to
foreclose the consideration of material evidence. Further, the Division
Bench of this Court in Sudesh & Ors (supra) recognised that, in a
dispute concerning the execution and validity of a Will, the
summoning of an attesting witness may be permitted even after the
closure of evidence, where such evidence is material to the
controversy.
53. The impugned order dated 20.02.2026 is, accordingly, set aside.
The applications under Order VIII Rule 1A(3) and Order XVI CPC
are allowed, subject to payment of costs of ₹75,000/- to the
respondent, to be paid within a period of one week from today. The
learned trial court is directed to ensure that the complete examination
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Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
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of Sh. Tarun Babbar is completed on any one date, which shall be
decided subject to the learned trial court‟s convenience. The learned
Trial Court shall thereafter proceed with the suit in accordance with
law and uninfluenced by any observations contained in the present
judgment, save to the limited extent necessary for giving effect to the
present order.
54. Accordingly, the present petition stands allowed and disposed
of in the above terms. Pending applications, if any, also stand disposed
of.
55. It is, however, clarified that this Court has not expressed any
opinion on the merits of the case.
56. The judgment be uploaded on the website forthwith.
AJAY DIGPAUL, J.
OCTOBER 15, 2026/ ar/sg
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CM(M) 587/2026 & CM(M) 623/2026 Page 20 of 20
Signed By:GAURAV
SHARMA
Signing Date:16.10.2026
18:56:57