Partly allowed

Jai Singh v. Shyama and Ors.

Rajasthan HC6 Feb 2013CW/11546/2010

Case brief

AI extract

What is this about?

In a writ petition challenging the rejection of a summons application under Order XVI, Rule 1 CPC, the High Court directed the court to summon an attesting witness as a party witness but declined the prayer to summon official revenue officers.

What did the court decide?

Petitioner allowed to summon attesting witness J. Gehlot on payment of costs; prayer to summon J.D.A. officers declined.

Jai Singh Vs Shyama and Ors. — Civil Procedure and Limitation | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: O R D E R :

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S.B. CIVIL WRIT PETITION NO.11546/2010

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(Jai Singh Vs. Shyama & Ors.)

Date of Order

06^th February, 2013

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. Girish Joshi, for the petitioner. Mr. V.L. Thanvi, for respondent Nos.1 and 2. Mr. Balveer Singh, for the respondent No.3.

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BY THE COURT:

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Heard learned counsel for the parties.

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This writ petition has been flied aggrieved against the order dated 23.11.2010, by which, the application filed by the petitioner under Order XVI, Rule 1 CPC has been rejected.

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The brief facts of the case are that the plaintiff filed a suit for declaration, possession and perpetual injunction against the respondents-defendants based on the strength of a Will, said to have been executed by late Shri Kani Ram in his favour. The said Will dated 30.11.1989, which is filed as Annexure-7 in this writ petition, indicates one J. Gehlot and Bhagwati Lal (respondent No.2) are attesting witnesses. An application under Order XVI, Rule 1 CPC was filed seeking to summon the said attesting witness J. Gehlot to depose before the Court as the

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other attesting witnesses Bhagwati Lal defendant No.2 by his written statement disputed the execution of the Will by late Shri Kani Ram. It was also prayed in the application that as a dispute has been raised by the defendants about the nature of the property in question as to whether the same was agricultural land or was an Abadi land. The competent officers of Jodhpur Development Authority be also summoned alongwith record in this matter.

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The learned trial court after hearing the parties, dismissed the application inter alia on the ground that the expression provided under Order XVI, Rule 1 CPC have not been satisfied, inasmuch as, the plaintiff-petitioner has failed to indicate any sufficient reason for not indicating the name of the said witnesses in the list of witnesses filed by him.

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I have heard learned counsel for the parties and perused the material placed on record.

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True it is that the plaintiff new that the foundation of a suit was the Will and despite the said document being a registered document, he was required to prove the same by producing the attesting witnesses of the said Will. The plaintiff was also aware that one of the attesting witnesses Bhagwati Lal was already impleaded by him as a defendant and the plaintiff was seeking relief against him and, therefore, there was likelihood of his not accepting the Will, therefore, it was incumbent on him to indicate name of J. Gehlot as a witness in the list of witnesses. However, in view of the fact that the foundation of the suit is the Will and failure of the plaintiff to summon and record the statement of

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said J.Gehlot would result in failure of justice. It is deemed appropriate that the petitioner plaintiff is granted one opportunity to summon said J.Gehlot as witness in the suit on payment of cost, which is quantified at Rs.5,000/-. So far as the prayer for summoning the authorities of Jodhpur Development Authority is concerned, the plaintiff cannot be permitted to prove his case by summoning official witnesses if required it was open for him to produce the record which he wanted to summon from the officers of the Jodhpur Development Authority, therefore, the prayer with regard to summoning the officers of J.D.A. And other Revenue Officers is declined.

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In view of the above discussion, the writ petition is partly allowed. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 115

Jai Singh v. Shyama and Ors.

Case brief

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Jai Singh v. Shyama and Ors.

Case brief

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