ANAND BAHADUR SINGH Vs. RAJENDRA BAHADUR SINGH

JUDGEMENT

(1.) This instant petition has been filed by the petitioners/plaintiffs challenging the legality and validity of the impugned order dtd. 27/10/2017 passed by IIIrd Additional Distdrict Judge, District Satna in MJC No. 17/2015, whereby the application filed by the petitioners herein under Sec. 151 of CPC has been rejected.

(2.) The facts of the case in short are that on or about 13/04/2009, the petitioners/plaintiffs filed an application under Sec. 379 of Indian Succession Act, 1925 (Annexure P/1) for probate of the will dtd. 08/09/2006 executed by Lt. Shri Hardharsan Singh in favour of the plaintiffs bequeathed his total 42.23 acre of bhumiswami land situated in the Mouja Hardi Kothar, Goursihai and Mouja Padari, District Satna and the will has now came into effect his death. The defendants/respondents has filed their written reply for contesting the plaintiffs application (Annexure P/2) submitting that Lt. Shri Hardharsan Singh has died on 15/11/2008 and before two months back of his death, he has executed the last will dtd. 07/08/2008 by cancelling the plaintiffs' will in favour of his younger brother Raghuraj Singh father of the defendants. On 27/04/2017, plaintiff No.1 has given his examination in chief and cross examination before the trial Court but instead of fixing the matter for further examination of plaintiffs' witnesses the matter has been fixed for other side witnesses on 27/06/2017 (Annexure P/3) by the trial Court by closing the plaintiffs evidence without any instruction by the plaintiffs' counsel in the matter. Thereafter, on 20/07/2017, an application under Sec. 151 of CPC (Annexure P/4) was filed by the plaintiffs for reopening the plaintiffs evidence submitting inter alia that evidence of Hand Writing expert and two more witnesses are left in the instant case, however, on 27/04/2017, due to clerical mistake of the court clerk, the matter has been fixed for the defendant's evidence and plaintiffs or their counsel has not declared the closing of evidence before the trial Court. Therefore, plaintiffs may be permitted to lead the remaining evidence in the matter, otherwise, the proper adjudication and justice would not be possible in the instant case. Upon hearing the parties, by order dtd. 27/10/2017, the trial Court has erroneously dismissed the plaintiffs' application under Sec. 151 of CPC by holding that despite of several opportunities the plaintiffs have filed their own affidavits in the matter and the order dtd. 27/04/2017 has not been a clerical mistake, whereby the plaintiffs has closed their evidence and fixed the case for defendants evidence because on the next date of hearing 27/06/2017, the plaintiffs' counsel has not raised any objection. The defendants has not press the examination of the hand writing expert because the plaintiffs' hand writing expert will not going to be examined in the matter.

(3.) Learned counsel for the petitioners/plaintiffs submits that the trial Court has committed error in passing the impugned order because the plaintiffs has still remaining main important witnesses i.e. hand writing expert and will's witnesses to be examined, without that real purpose of this case will be frustrated. It is also submitted that that the trial Court has dismissed the said application by holding that the case is that probate application is pending since 2009 and on various occasions, time was sought by the plaintiffs for producing evidence, since 28/03/2016 and thereafter, the plaintiffs has filed their own affidavit in the matter instead of filing affidavit of material witnesses. Under these circumstances, learned counsel for the petitioners, prays for setting aside of the impugned order.