SATBIR Vs. MARIYA AND OTHERS

JUDGEMENT

(1.) The petitioner is aggrieved of the impugned orders dated 23.03.2017 and 20.04.2017 whereby the evidence has been closed and application for recalling of the order closing the evidence has been dismissed.

(2.) Mr. Anurag Jain, learned counsel appearing on behalf of the petitioner-defendant submits that in suit instituted by the respondentplaintiff, an application for summoning of the attesting witness of the Will dated 15.06.1979 namely Dayanand son of Lehri was ordered to be summoned. He took copy of the summon but refused to put thumb impression/signature. Report dated 22.03.2017 submitted by the process server is a testimony to the same but the trial Court vide order dated 23.03.2017 closed the evidence without noticing the aforementioned fact. An application moved for recalling for the order dated 23.03.2017 was moved but the same has also been rejected vide order dated 20.04.2017. He relied upon the provisions of Order 16 Rule 10(2) of the Code of Civil Procedure to contend that the trial Court instead of closing the evidence ought to have resorted to the aforementioned provisions.

(3.) Learned counsel for the respondent-plaintiff submitted that the petitioner-defendant had taken many adjournments which have been noticed in the impugned order but did not take any steps to summon the witness. Had the due diligence been taken, the situation of closing of evidence would not have arisen, thus, urges this Court for dismissal of the revision petition with exemplary costs.