MANINDER PAL SINGH Vs. JASMEET SINGH

JUDGEMENT

(1.) Challenge in the present revision petition is to the order dtd. 23/11/2022 (Annexure P-1) passed by the Civil Judge (Jr. Division), Jalandhar in Civil Suit No.CS/311/2015 titled as "Jasmeet Singh and others Vs. Maninder Pal Singh and others", to the limited extent whereby a specific direction has been issued to the petitioners, who are defendants No.1 to 4 , to record their evidence first qua the Will in question.

(2.) It is argued on behalf of the petitioners that the petitioners are defendants No.1 to 4 in the suit and thus, it was the duty of the plaintiffs to lead evidence first and the present petitioners cannot be asked to lead evidence prior to the evidence of the plaintiffs. It is submitted that it is a matter of settled law that the plaintiffs have to first lead evidence and it is only after the evidence has been led by the plaintiffs that the defendants would lead evidence to rebut the evidence led by the plaintiffs. It is thus prayed that the present revision petition be allowed and the impugned order dtd. 23/11/2022 to the said extent be set aside and the plaintiffs/respondents No.1 to 4 be directed to lead their evidence first.

(3.) On the other hand, learned counsel for respondents No.1 to 4 /plaintiffs has submitted that in the present case, vide order dtd. 18/1/2021, issue with respect to Will which was propounded by the petitioners/defendants No.1 to 4 was framed and the onus of the same was put on the petitioners/defendants No.1 to 4. It is further submitted that in the said order dtd. 18/1/2021 (Annexure P-5), it was specifically directed that the present petitioners would lead their evidence first qua the Will and that the said order has not been challenged and thus, the present petitioners are estopped from challenging the subsequent order dtd. 23/11/2022 on the principle of constructive res judicata. It has further been fairly stated that the petitioners had sought recalling of the order dtd. 18/1/2021 and the trial Court had dismissed the said application vide order dtd. 29/10/2021, however inadvertently, in the last line of para 7, it was stated that the case is now to come up for PWs. It is submitted that against the said direction, an application was filed by respondents No.1 to 4/plaintiffs seeking clarification and the trial Court vide order dtd. 15/9/2022 was pleased to allow the said application and had clarified that the case would be fixed for the evidence of the defendants/petitioners. It is submitted that the said order dtd. 15/9/2022 has neither been annexed by the petitioners nor has been challenged by them. It is stated that in the said circumstances, the present revision petition deserves to be dismissed on the said point alone. It is further argued that it is a matter of settled law that a person who propounds the Will is required to prove the same and since it is the petitioners/defendants No.1 to 4 who are the propounders of the Will, thus, it is for them to lead evidence to prove the Will in the first instance.