DAMAN KUMAR MALHOTRA Vs. A K MALHOTRA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the impugned order dated 30.7.2005 passed by Civil Judge, Delhi dismissing an application under Order XVIII Rule 16 of Code of Civil Procedure for immediate examination of a witness.

(2.) I have heard Mr. Alok Lakhanpal, learned Counsel for the petitioner and Mr. G.C. Sharma, learned Counsel for respondent and have gone through the impugned order as also copies of the documents placed on the file.

(3.) Briefly the facts are that the respondent herein (plaintiff in the trial Court hereinafter referred to as 'plaintiff') filed a suit for declaration, perpetual injunction and recovery of possession against the petitioner herein (defendant in the trial Court hereinafter referred to as defendant). It is prayed in the plaint that the Will executed by late Shri B.L. Malhotra be declared as a forged and fabricated document and for declaring some sale deed as void. There was a question of partition between the parties during pendency of the matter. An application under Order XVIII Rule 16 of Code of Civil Procedure was moved by the defendant for recording the evidence of Shri Mukand lal Malhotra, aged about 85 years on the ground that he was bed-ridden and suffering from prostate cancer. The said prayer of the defendant was declined, vide impugned order, though the plaintiff had not filed any reply. The affidavit of the said witness has been filed in the trial Court and as per that affidavit there is a deposition about the issues that are likely to arise in the dispute.