SMT. MITHU DEVI Vs. SMT. INDUBALA @ SHEELA

JUDGEMENT

(1.) In the present writ petition, the petitioners have laid challenge to the order dated 13.04.2017 passed by the learned Additional District Judge No. 5, Jodhpur Metropolitan, Jodhpur (hereinafter to be referred as "Trial Court") whereby, the application dated 22.09.2016 filed by the petitioners-plaintiffs under Order 7 Rule Order 14(3) of the Code of Civil Procedure has been rejected.

(2.) Shorn of unnecessary details, the facts relevant for the purpose of decision of the present writ petition that the petitioners-plaintiffs filed a suit for cancellation of a Gift Deed dated 14.10.2005, said to have been executed by Budha Ram, in favour of defendant No. 1 (Smt. Indubala @ Sheela). While filing the suit, the plaintiffs have in unequivocal terms stated that said Budha Ram, the donor, had been suffering from paralysis since 2003 and at the relevant time, when the contentious Gift Deed was allegedly executed, he was not in a position to execute the same. It was also averred in the plaint that within a period of 5 months of the date of execution of the Gift Deed, Budha Ram had expired and that he was neither in a position to walk nor was he in the mental state, to execute the Deed in question.

(3.) During pendency of the suit, when the matter was fixed for plaintiffs' evidence, the petitioners moved an application dated 22.09.2016 indicating therein, that the petitioners have found certain documents relating to treatment of said Budha Ram which evince that Budha Ram was so terminally ill that he was unable to execute the Gift Deed. It will be relevant to reproduce the facts indicated in the application which reads thus:- <IMG>JUDGEMENT_61_LAWS(RAJ)7_2017.jpg</IMG> Apart from the above, it was also indicated in the application that at the time of filing of the plaint, the documents were not in the knowledge of the petitioners-plaintiffs and that they have been found just a few days before filing of the application under consideration. The said application of the plaintiffs was seriously opposed by the defendants orally, though no reply thereto was filed.