RANO DEVI AND ORS Vs. RAM LAL

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir has been filed by the petitioners thereby challenging four different orders of same date i.e. 04.08.2018 passed by the Court of Munsiff Akhnoor in 1) an application of the petitionerss under order XVIII Rule 17 CPC in a suit for declaration and injunction titled "Ram Lal vs Rano Devi and Others"; 2) an application for producing additional evidence and also to prove Will in terms of Section 71 of Evidence Act; 3) an application u/s 45, 46 and 47 of the Evidence Act for the signature identification of witness Suraj Ram; and 4) an application for recalling of the order dated 21.04.2018/27.04.2018 passed by the trial court with further directions to recall the said witness.

(2.) In the petition, it has been stated that by virtue of orders impugned passed by the trial Court a grave miscarriage of justice has been occasioned. The trial Court has not only omitted to invoke the jurisdiction vested in it but also has committed a grave error of law. So the orders impugned passed by the trial Court dated 04.08.2018 deserve to be set aside/quashed. That admittedly the evidence of the petitioners was closed by the trial Court and this Court vide its order dated 103.2018 had refrained from interfering into the legality/illegality of the said order. The said order of this Court had no bearing over an application moved by petitioners under Order XVIII Rule 17 CPC as it was in different provision of law to that of what this Court had already dealt with. But the trial court had dismissed the said application of the petitioner by misinterpreting the order of this Court dated 103.2018 vis-a-vis the application of the petitioners. Not only this, it has even avoided applying its discretion judiciously in recalling the witness. Apparently the order impugned passed under Order XVIII Rule 17 CPC is not a judicious order but has been passed on the basis of wrong interpretation of the orders of this Court, provision contemplated under Order XVIII Rule 17 CPC and the facts and circumstances of the case. Similarly, the application for producing additional evidence by the petitioners before the trial court is a vested right of the petitioners in the trial Court even upto the appellate Court in terms of Order 41 Rule 27 CPC. Moreover Section 71 of the Evidence Act provides that if the attesting witness denies the execution of the document then its execution may be proved by other evidence, this has also been dismissed without any judicious mind merely on the ground that vide order dated 103.2018 this Court has dismissed the petition of the petitioners for producing evidence and has made the order dated 25.08.2017 as binding on the court. It is also said in the order impugned that Sh. V. K. Sharma, Advocate who is scriber of the Will Deed and also an identifier of the testator at the time of registration of the will deed had been the counsel of the defendants could have been brought to the witness box by the defendants themselves while he was their counsel and also Sh. Ramesh Kumar, the scriber of the will deed. But the fact remains that the said advocate Sh. V.K.Sharma if was a scriber and identifier to the said Will could not had been a counsel for the either side to the litigation but still he chose to be the counsel for the defendants and for the reasons unknown to the defendants neither he advised the defendants to place on record the original Will nor did become the witness in the trial and in the mid way of the trial left it. So for his negligence intentionally or unintentionally, the petitioners cannot be deprived for justice. Moreover the delay in the trial is not because of the conduct of the petitioners/defendants but because of the reason that till 2010 the onus was on respondent/plaintiff to disprove the Will of the said Late Shanti Devi and w.e.f. 2005-2010 the delay in producing the evidence was caused by the respondent/plaintiff. In 2012 because of the death of predecessor in interest of petitioner Nos.1 to 6 namely Raj Pal the application for substituting his legal representatives remained undecided till 2013 and the earlier petition before this court took four years i.e. w.e.f 2013 to 2017. So no delay has been caused by the petitioners/defendants in the disposal of the case but the trail court on the ground of old case and delay by the petitioners, has dismissed the application. So the order impugned is bad in the eyes of law thus deserve to be set aside/quashed.

(3.) It is further stated in the petition that the petitioners have moved an application for conducting signature verification of the witness namely Suraj Ram, who denied to be attesting witness in the said Will nonetheless he has signed the said Will as attesting witness and there is specific provision u/s 45 to 47 of the Evidence Act to meet such an eventualities, not only this the petitioners even produced four documents carrying the signatures of said Suraj Ram at different occasions which on comparison exfacie reveals the signature of one and the same person. But the Court below even dismissed this application also on the ground that it will not serve any purpose, if it is allowed.