RAJENDRA SINGH CHHATRASAL SINGH KUSHWAHA Vs. JITENDRA SINGH

JUDGEMENT

(1.) PLAINTIFFS have filed an application for striking of the order deleting paragraph 3, 4, 13 to 17 from the affidavit dated 18th March, 2013 filed by the defendant/caveator filed in lieu of examination in chief. Defendant/caveator has filed affidavit in reply to this application.

(2.) MR . Shah, learned senior counsel appearing for the plaintiff invited my attention to paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief filed by defendant on 18th March, 2013. The learned senior counsel also invited my attention to the issues framed by this court on 23rd August, 2012. The Testamentary petition was filed by the executor in this court inter alia praying for probate in respect of the alleged will and testament dated 10th May, 2006. This court has framed the following issues :

(3.) MR . Shah learned senior counsel placed reliance on Order 18 Rule 2 of the Code of Civil Procedure, 1908 in support of his submission that evidence has to be led in support of the issues which the party is bound to prove and not on any other irrelevant issues. Learned senior counsel submits that the dispute about address of the said deceased or whether the said deceased could have bequeathed some of the properties as mentioned in the affidavit in lieu of examination in chief, are not the issues in respect of which evidence can be led by the defendant. It is submitted that since all these paragraphs referred to aforesaid are not relevant in support of the issues involved, these paragraphs are required to be struck off at this stage. It is submitted that if this part of evidence which is not relevant is not struck of, there will be unnecessary lengthy cross examination of the defendant which would not be in the interest of any party. Order 18 Rule 2 and 4 of the Code of Civil Procedure read thus: