SWARAN KANTA Vs. BRIJ KUMAR DHIR

JUDGEMENT

(1.) This revision is directed again the order dated 1.12.1990 passed by Subordinate Judge 1st Class, Amritsar, dismissing the petition made by the defendant No. 3 in the suit for additional evidence under Order 18 Rule 17-A of the Code of Civil Procedure, 1908. The material facts in order to appreciate the controversy are that Brij Kumar Dhir instituted a suit for partition, rendition of accounts and injunction against his brother, mother and sisters etc. Defendant No. 3, Ms. Swaran Kanta took a plea in the written statement that their father late Kahan Chand had left registered will bequeathing the property in question in favour of persons other than the plaintiffs. The will is a registered document and has been on record of the case and has been referred to in the evidence and bears mark-L. It is dated August 20, 1973. The suit was instituted on 5.3.1981. The plaintiff closed his evidence on 9.10.1987. The defendants were given several opportunities from October, 1987 to May, 1990 to produce their evidence. On 11th May, 1990, the junior of Shri Sardari Lal Sachdeva, Senior Advocate, who was appearing for defendant No. 2 (mother) and defendant No. 3 (sister of the plaintiff) made a statement that the said defendants represented by him would produce their evidence at their own responsibility on the adjourned date. The case was fixed for remaining evidence of the defendants for 23.5.1990. On that date, the said defendants having failed to produce any evidence, their evidence was closed vide order dated 23.5.1990 by the order of the Court. The present application was made on 17.9.1990 making two prayers : (i) that the will left by Gaura Wanti, defendant No. 2, in the suit who had died during the pendency of the suit, dated 2.2.1978 and which was marked 'M' may be read in evidence as a document duly exhibited, and (ii) marginal witness of the will dated 20th August, 1973 mark-L made by Kahan Chand, be summoned to prove the said will and Swaran Kanta, defendant No. 3, be resummoned with regard to the said will.

(2.) The trial Court by the impugned order allowed one of the prayers and in para 7 of the order directed that the will mark-M shall be read in evidence but declined the other prayer, namely, that the other will mark-L shall be allowed to be proved. Aggrieved by the said order, the defendant No. 2 has preferred this revision.

(3.) The contention of the learned counsel for the petitioner is that the will sought to be proved is a registered document and its authenticity cannot be easily doubted. He further submitted that the will in question is not material document going to the root of the matter and for a correct decision of the case, it is necessary to be produced in evidence. He further contended that Mr. Sardari Lal Sachdeva, Advocate, had been suffering from heard ailment and in his absence, his junior attended the Court and ultimately, Shri Sachdeva died and in these circumstances, the petitioner was not effectively represented all along.