BHAGWANTI Vs. SESI

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order dated 9th Aug., 2017, passed by learned Civil Judge (Junior Division), Manali, District Kullu, whereby an application under Order 18, Rule 17 read with section 151 of CPC, filed on behalf of the petitioner/defendant for reexamination of DW-6 Lalit Kiran, came to be dismissed, petitioner (hereinafter referred to as the "defendant") has approached this Court in the instant proceedings.

(2.) It is not in dispute that the defendant was afforded opportunity by learned Court below to lead secondary evidence to prove the existence of Will, vide order dated 16th Aug., 2016, pursuant to which, defendant examined DW-6, Lalit Kiran, to prove the handwriting and signature of the scribe over the Will. During his examination, DW-6 Lalit Kiran identified the handwriting and signature of his father over the Will but since Will in question was a photocopy of original, learned Court below marked the same as Mark-A. Since, Will in question could not be exhibited at the time of recording of statement of defendant's witness, DW- 6 Lalit Kiran, defendant moved an application under Order 18, Rule 17, praying therein for re-examination of DW-6 Lalit Kiran. Applicant averred in the application that father of DW-6 Lalit Kiran, late Lal Chand Thakur, had scribed the Will dated 3.12000, executed by late Smt. Chobi in favour of the petitioner/defendant and this aforesaid witness has already deposed before the Court and proved the factum with regard to scribing of Will by his father, Will in question, which has been marked as Mark-A, inadvertently, could not be exhibited at that time and as such DW-6 may be reexamined and re-called, so that Will proved by him is exhibited.

(3.) Mr. B.S. Attri, learned counsel representing the petitioner/defendant vehemently argued that since learned Court below permitted the defendant to lead secondary evidence for proving the valid execution of Will, prayer made by the defendant under Order 18, Rule 17 read with section 151 of Civil Procedure Code for re-examination of DW-6 Lalit Kiran for the purpose of exhibiting the Will, ought to have been allowed, especially, in view of the fact that he was the only witness, who could prove the valid execution of the Will. He has further stated that it is not in dispute that neither propounder of the Will nor any marginal witness is alive and as such, permission was accorded by the learned Court below to lead secondary evidence under section 65 of the Indian Evidence Act to prove the valid execution of the Will in question. He further argued that since DW-6 Lalit Kiran categorically stated before the learned Court below with regard to scribing of Will by his father, photocopy of Will made available to the Court at the time of recording of his statement, ought to have been exhibited and not marked. He further argued that exhibition of Will in question will not cause any prejudice to the opposite party because otherwise also they shall get an opportunity to rebut the same by leading cogent and convincing evidence, if any.