ARUNKUMAR Vs. RUKMANI BAI TALKAR

JUDGEMENT

(1.) The petitioner has called in question the order dated 29.9.2018 passed in Final Decree Proceedings No.1/2006 on the file of the Civil Judge (Jr.Dn.) and JMFC, Harihar, passed on I.A.Nos.XII and XIII vide Annexure-H to the writ petitions and consequently to allow the said I.As filed under Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure.

(2.) It is contended that respondent No.1 namely, Smt.Rukmani Bai Talkar had filed petition in FDP No.1/2006 before the Court of Civil Judge (Jr.Dn.) and JMFC, Harihar. During the pendency of the final decree proceedings, respondent No.1 died. Later respondent No.1(a) had filed an application under Order 22 Rule 3 of CPC to come on record and prosecute final decree proceedings as legatee under the Will dated 8.1.2007 said to have been executed by the deceased Smt.Rukmani Bai Talkar i.e., deceased respondent No.1. The application was allowed. In view of the same, he had examined the scribe and witnesses of the Will as PWs 2 to 4. Since the counsel for the petitioner had not cross examined the witnesses, the matter was posted for arguments. The petitioner had filed I.As.XII and XIII under Order 18 Rule 17 of CPC to reopen and recall the witnesses for cross examination. The said applications came to be dismissed. Hence, the present writ petitions.

(3.) Learned counsel Sri.K.J.Jagadeesh appearing for the petitioner submitted that the Court below grossly erred in dismissing I.As XII and XIII, since respondent No.2/petitioner was suffering from health problem and the explanation offered by the petitioner satisfactorily for not cross examining the witnesses at the relevant time was not properly appreciated by the Trial Court. Further cross examination of PWs 2 to 4 being necessary, the order impugned calls for interference by this Court.