LRS OF DWARKAPRASAD Vs. LRS OF MISHRILAL

JUDGEMENT

(1.) The present writ petition under Article 227 of the Constitution of India has been filed by the petitioners-plaintiffs challenging the order dtd. 28/10/2025 (Annx.13) passed by the Additional District Judge No. 5, Jodhpur Metropolitan in Civil Original Suit No. 345/2012 titled as "LR's of Dwarka Prasad vs. LR's of Mishrilal and Ors.", to the extent vide which application under Order XVI Rule 1 of the Code of Civil Procedure, 1908 (for short 'the Code' hereinafter) seeking to summon the witnesses to the will (Ex.123) was rejected.

(2.) The facts relevant for disposal of the present petition are that Late Sh. Dwarka Prasad Jindal, father of the present petitioners, instituted a civil suit seeking partition and permanent injunction against his father Late Shri Mishrilal Jindal, claiming that the properties described in paras 2 to 9 of the plaint were joint Hindu family properties, liable to be partitioned by metes and bounds. The defendant - Late Shri Mishrilal Jindal contested the suit by filing a written statement denying the ancestral nature of the properties and asserting that several of them were self acquired properties. Subsequently, Hari Prasad Jindal and Trilok Prasad Jindal (respondent Nos. 2 and 3 herein) were impleaded as defendants and they also filed written statements denying the existence of any HUF and asserting independent ownership over several properties. During the pendency of the suit, Late Sh. Mishrilal Jindal expired on 6/3/2008, and his legal representatives were substituted on record. Later, the plaintiffs sought amendment of the plaint under Order VI Rule 17 of the Code, which was allowed on 19/11/2018. The defendants filed their written statements and also challenged the amendment order before the High Court. During the pendency of proceedings, the original plaintiff Late Shri Dwarka Prasad Jindal expired on 3/12/2019, and the present petitioners were substituted as his legal representatives vide order dtd. 10/1/2020. Thereafter, on 16/9/2025, the petitioners filed an application under Order XVI Rule 1 CPC seeking summoning of the attesting witnesses of a Will (Exhibit-123) allegedly executed by Late Smt. Rukmani Devi, wife of Late Sh. Mishrilal Jindal, which had earlier been produced in photocopy by defendant Hari Prasad Jindal. However, the trial court dismissed the said application vide order dtd. 28/10/2025. Hence, this writ petition has been preferred by the petitioners.

(3.) Heard learned counsel for the parties.