MANPHOOL AND ANOTHER Vs. RAJINDER KUMAR AND OTHERS

JUDGEMENT

(1.) Present petition is challenge to the order dated 27.1.2016, passed by learned Civil Judge (Junior Division), Kurukshetra vide which application filed by the defendants No.1 & 2/petitioners under Order 18 Rule 17 CPC read with Section 151 CPC was dismissed. Learned counsel for the petitioners submitted that onus to prove issue No.1 was to be put on defendants, who are propounder/beneficiaries of the Will as per judgment rendered by Hon'ble the Apex Court in Shanti Devi v. Daropti Devi, 2007 1 ApexCJ 346.

(2.) Learned counsel for the petitioners further submitted that witnesses namely Mr. Ashok Kumar Khera, Advocate (DW.3), Jagan Nath (DW.4) and Mr. W.C.Juneja, Advocate (DW.9) may be recalled for putting the Will to them. Earlier, the relevant questions could not be put to them because of mistake of the counsel and it is settled law that party should not be put to suffer because of inadvertence on the part of the counsel. On this point, reliance has been placed upon judgment rendered by this court in Shera v. Asha Ram, 1987 2 HinduLR 359. But that prayer was declined by the court below without any justified reason and the impugned order is liable to be set aside.

(3.) Learned counsel for respondents No. 2, 3, 7, 8 & 9 submitted that the Court below has already considered all these facts while passing the order under challenge. More so, there was no justification for recalling the witnesses again and again for recording their statements, otherwise, there is no end.