BALDESH KAUR Vs. DHIAN KAUR

JUDGEMENT

(1.) THE instant petition filed under Article 227 of the Constitution is directed against order dated 12.3.2005 passed by the learned Additional District Judge, Chandigarh allowing the statement of attesting witness Rakesh Kumar Gupta to be recorded as additional evidence at the stage of first appeal under Section 96 of the Code of Civil Procedure, 1908. The file has been ordered to be laid before the learned trial Court on 20.4.2005 when the defendant-respondents are required to examine the attesting witness. It has further been directed that three opportunities in a period of 45 days are be granted by the learned trial Court to conclude the additional evidence and the same is required to be sent back to the learned Appellate Court. The learned Appellate Court has given a categorical finding that evidence of second attesting witness is essential to enable the Court to decide the appeal effectively. It has not been disputed that Rakesh Kumar Gupta was sought to be examined by the trial Court but his presence could not be procured by the defendant-respondents.

(2.) THE plaintiff-petitioner filed civil suit for possession by way of partition to the extent of 1/4th share in the suit property between the plaintiff-petitioner and defendant-respondents 1 to 3. A further prayer for permanent injunction was also made restraining defendant-respondents 1 to 3 from alienating or transferring suit property to any one till partition. The suit was decreed and a preliminary decree was passed. The defendant- respondents were also restrained from alienating the suit property till final decree was passed. The trial Court discarded the Will set up by the defendant-respondent No. 1 on account of suspicious circumstances. The defendant-respondents filed appeal under Section 96 of the Code and requested for additional evidence under Order 41 Rule 27 of the Code. The application has been allowed vide order dated 12.3.2005. The operative part of the order reads as under :

(3.) THE judgment of the Supreme Court in N. Kamalam (dead) v. Ayyasamy, 2001(4) RCR(Civil) 193 (SC) : AIR 2001 SC 2802, on which reliance has been placed by the learned counsel does not advance the case of the plaintiff-petitioner. There is no issue with regard to the grant of an opportunity to a witness which was sought to be examined by the trial Court and the case has been remanded for that purpose by the first Appellate Court while hearing appeal under Section 96 of the Code. The judgment is not attracted to the facts of the present case. Therefore, the argument raised on the basis of the afore- mentioned judgment is rejected. For the reasons recorded above, this petition fails and the same is dismissed. Petition dismissed.