SANJAY SHARMA Vs. JITENDRA SHARMA

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India has been preferred by petitioner/plaintiff being aggrieved by the order dtd. 16/08/2023 passed in Civil Suit No. 48A/2019 by the V Civil Judge Junior Division, Morena whereby Trial Court allowed the application filed by defendants/respondents and permitted to recall the defendant witness-Anita whose evidence has been concluded on 21/07/2023.

(2.) Brief facts of the case are that plaintiff filed suit seeking declaration to the effect that he is heir of Late Shri Sevaram, hence be declared owner of land and house (mentioned in plaint para no. 1) along with defendant no. 1 to 3. So, he also sought declaration to the effect that the so called "Will dtd. 4/3/2016 is forged. Defendants, after notice appeared before the Trial Court and filed the written statement. Thereafter, Trial Court framed issues. plaintiff lead his evidence and after closing evidence of plaintiff, defendants started their evidence, evidence of Defendant No.1 Jitendra Sharma (D-W-1) who appeared as defendant himself on 1/7/2023, cross examination on him was completed on 8/7/2023 and evidence of Anita Tiwari alleged attesting witness was completed on 21/7/2023.Thereafter, defendants filed an application under Order 18 Rule 17 of the CPC for reexamination of Anita Tiwari which was allowed by the Trial Court.

(3.) Being aggrieved with the impugned order, counsel for petitioner filed this petition and submits that Trial court has committed serious error of law in understanding the intention of order 18 rule 17 C.P.C which is| not provided to fill up the lacuna in the evidence, in the case in hand looking to the reason given by trial court that original Will was not produced at the time of evidence of Anita Tiwari and allowed the application for recalling of Witness Anita Tiwari apparently shows that application has been allowed to fill up the lacuna in evidence, which is not permissible under the such provision. Therefore, impugned order passed by the Trial Court Court deserves to be set-aside.