SANJOY KUMAR DEY Vs. SUJOY KUMAR DEY

JUDGEMENT

(1.) This is an application by the defendant-caveator in a testamentary suit for re-examining the plaintiff's first witness being the executor. It is submitted on behalf of the applicant that the executor adduced evidence before the attesting witness and as such, at the time when the applicant cross- examined the executor the Will in question was not tendered in evidence. According to the applicant, since the Will was not tendered till then the executor could not be asked questions by showing the document. The applicant refers to the order dated 7th November, 2019 passed at a time when the cross-examination of the plaintiff's first witness being the executor was about to conclude. Since the Court directed the plaintiff by the order dated 7th November, 2019 to produce the attesting witness on the next date fixed and also recorded that the cross- examination of the executor could not be concluded as re-examination is required after the evidence of the attesting witness the applicant cannot be blamed for not availing the opportunity of fully cross-examining the executor being the plaintiff's first witness. On behalf of the plaintiff the application is opposed without filing any affidavit by referring to the pleadings to demonstrate that it lack in particulars as to why re-cross examination is required because re- cross examination can only take place once the cross-examination has been concluded. The case of the plaintiff is that the cross-examination had not been concluded and as such, the question of re-cross examination does not arise. Moreover, re-examination, according to the plaintiff, is required to clear any ambiguity that may have arisen in course of the examination and cross- examination of the subsequent witnesses. It is not the case of the applicant that there is any ambiguity after the conclusion of the evidence of the plaintiff's second witness. The plaintiff has also placed question nos. 51 to 60 asked to the executor in cross-examination and submitted that the applicant had in fact put questions on the Will and as such no further questions are required to be put to the plaintiff's first witness in re-cross examination on the Will in question. The re-cross examination is, therefore, not needed at all.

(2.) After considering the rival contention the materials on record, I find that the executor was cross-examined at a stage when the Will was not tendered. The Will is a document of the plaintiff unless the same is tendered, there is no compulsion on the part of the defendant to put the questions with regard to such document or cross-examine the witness by showing the document. Once the Will is tendered cross-examination by showing the document becomes necessary on the part of the defendant i.e., the applicant to dispel the criticism of not having cross-examined the witness on the document which may even lead to an adverse inference against the defendant.

(3.) In the facts and circumstances and particularly in view of the order dated 7th November, 2019, I direct that the plaintiff's first witness to be present on 11th February, 2020 for re-cross examination only in respect of the Will being the subject matter of the suit.