Ajay Mohan Goel, J. - By way of this petition, petitioner has challenged order dated 27.04.2018, passed in CMP No. 171 of 2018, in Civil Suit No. 716 of 2013, vide which, application filed under Section 73 of the Indian Evidence Act by the petitioner/ plaintiff for comparison of the finger/thumb impression of the deceased Sunder Singh over the disputed Will with purported admitted documents, stands dismissed by the learned Court below.

2. Brief facts necessary for adjudication of the petition are that petitioner/plaintiff (hereinafter referred to as plaintiff) has filed a suit for declaration as also for joint possession and injunction against the respondents/ defendants to the effect that Will dated 28.06.1995 be declared as null and void and plaintiff and defendant No. 1 be declared owners of the suit land in equal shares on the basis of Will dated 04.01.1986.

3. The suit was filed in the year 2010. During the pendency of the suit, at a belated stage, when the case was at the stage of arguments and same stood adjourned six times on the request of plaintiff, an application was filed by the plaintiff under Section 73 of the Indian Evidence Act for comparing finger/thumb impression of deceased Sunder upon disputed Will and sale deed with his admitted finger/thumb impression upon Will dated 04.01.1986. The application is dated 15th September, 2017.

4. It was averred in the application that the applicant had filed a suit for declaration and cancellation of Will dated 28.06.1995 allegedly executed by deceased Sunder. There was great difference between finger/thumb impression on Will dated 04.01.1986 as compared to Will dated 28.06.1995 as also sale deed dated 26.03.1996. It was further averred in the application that deceased Sunder was seriously ill and was confined to bed and was not in a position to move and defendant took undue advantage of the aforesaid situation. As per applicant/ plaintiff, Sunder had never executed the disputed Will and it was necessary to compare finger/thumb impression for decision of the case.

5. The application was opposed by the respondent/contesting defendant inter alia on the ground that the documents referred to in para two of the application were in possession of the plaintiff since last 10 years and the statements of the attesting witnesses to the Will under challenge stood recorded and the application had been filed just to delay the case and harass the defendants.

6. Learned Court below vide impugned order dismissed the application by holding that there was merit in the contention of the contesting defendant that application was filed at a belated stage with the intent just to linger on the case. Learned Court held that plaintiff could have filed the application earlier at the time of leading evidence but he did not do so. Application was filed at a stage when the matter was listed for final arguments and that too after six adjournments had already been sought and granted by by the Court for arguments. It held that the Will in question was a registered Will and the testator stood duly identified by one Shri R.N. Sharma, Advocate, who had appeared as DW-2 in the Court and who had specifically stated that he personally knew Sunder as he was native of the same village and said factor required to be considered while deciding the application. On these bases, learned trial Court dismissed the application.

7. I have heard learned Counsel for the parties and also gone through the impugned order as also the records of the case.

8. It is not in dispute that the suit in question was filed in the year 2010. The petitioner is plaintiff before the learned Court below. It is his allegation that the purported Will in favour of defendants is a forged Will. Therefore, the onus to prove the said fact is obviously on the petitioner/ plaintiff. Nothing stopped the petitioner from moving the application under Section 73 of the India Evidence Act at the stage when the plaintiff was leading his evidence before the learned trial Court. It has not been disputed, as it stands recorded in the impugned order too, that application under Section 73 of the Evidence Act was filed by the petitioner/plaintiff after six adjournments had already been sought and granted to the plaintiff to address learned trial Court on merit in the main suit itself. This palpably demonstrates that said application was filed just with the intent to delay the matter.

9. A perusal of the application demonstrates that there is not even a whisper in the application as to what prevented the petitioner for almost seven years from filing the application under Section 73 of the Evidence Act before the learned trial Court. The contention of the learned Counsel for the petitioner that procedural law is for furtherance of justice has no force in the facts of the case because procedure cannot be allowed to be used as a tool by a party to delay or prolong a litigation.

10. In this view of the matter, as this Court does not finds any illegality in the impugned order nor is there any infirmity in the same, this petition being devoid of merit is dismissed. On the request of learned Counsel for the petitioner, it is clarified that the suit shall be decided by learned Court below on merit uninfluenced by any observation made in this order or the order impugned passed by learned trial Court.

The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.