GULVANT KAUR Vs. MANJIT SINGH

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution prays for quashing order dated 14-2-2005 passed by learned Additional District Judge, Ludhiana who had sent back the case to the trial Court to record the statement of one Pritam Singh, Namberdar, a marginal witness on the registered Will set up by the plaintiff-respondent. The trial Court has been directed to issue bailable warrants once again to Pritam Singh for recording his statement and after doing needful to return the file to the Additional District Judge, Ludhiana on or before 20-4-2005.

(2.) Brief facts of the case are that plaintiff-respondents Nos. 1 to 3 filed a civil suit for joint possession of the suit land which was dismissed by a judgment and decree dated 29-10-2002 by holding that the plaintiff-respondents No. 1 to 3 failed to prove due execution of Will. The suit was based on a registered Will dated 13-4-1983 executed by one Sardara Singh deceased in favour of plaintiff-respondents Nos. 1 and 2. It was further prayed that mutation of inheritance entered in favour of Gurdial Singh (now represented by his legal representatives defendant-respondents Nos. 6 to 11) be also set aside. Against judgment and decree dated 29-10-2002, the plaintiff-respondents preferred an appeal before the learned District Judge, Ludhiana. During the pendency of the appeal, an application under Order 41, Rule 27, CPC was filed by plaintiff-respondents Nos. 1 to 3 which was allowed vide order dated 5-11-2004. Accordingly, plaintiff-respondents Nos. 1 to 3 were permitted to adduce additional evidence in the shape of legal heirs of Sampuran Singh and also to produce marginal witness of the Will. The Court also permitted the defendant-petitioner to lead rebuttal evidence to the evidence that was to be adduced by the plaintiff-respondents Nos. 1 to 3. The case was remanded back to the trial Court on 17-11-2004 with a direction to send its report on 22-12-2004 (Annexure P-1). In compliance of the order, the learned trial Court issued summon and bailable warrants to produce Pritam Singh Namberdar and it was to proceed to record his statement. However the time limit fixed by remand order had approached and it had to close the evidence of the plaintiff-respondents by order without recording the statement of Pritam Singh. It would be pertinent to make a reference to the order dated 15-12-2004 passed by the trial Court and the same reads as under :

(3.) Accordingly, the file was sent back to the learned Additional District Judge. When the report along with the above-mentioned order reached the Court of learned Additional District Judge, an application was filed for extension of time and for recording of additional evidence. The impugned order has been passed by allowing aforementioned application. The operative part of the impugned order reads as under :