Sahil Bhardwaj, Mr. Preet Pal Singh, Ms. Tabupreet Kaur, Ms. Medha Navami, Advs v. SH. VIJENDER SINGH ORS

Judgment

1. In substance, the issue before this Court is whether the sole surviving attesting witness to the Will should or should not be permitted to appear once the defence evidence has been formally closed. It is noteworthy that his affidavit in lieu of examination-in- chief was filed as far back as 31.08.2015 and continues to remain part of the record. The only step pending is his cross-examination, which Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 1 of 17 could not be conducted earlier on account of his non-appearance.

2. The present Appeal filed under Section 10 of the Delhi High Court Act, 1966 [hereinafter referred to as “DHCA”] read with Delhi High Court Rules assails the correctness of order dated 08.01.2025 [hereinafter referred to as “Impugned Order”], passed by learned Single Judge in I.A. No. 4224/2024 in CS (OS) No. 1546/2009, whereby the learned Single Judge dismissed the application filed by the Appellants [Defendants No.2 to 4 before learned Single Judge] under Order XVI Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”], seeking

permission to summon and examine Shri Ajay Gopal the sole surviving attesting witness to the Registered Will dated 24.05.2002 [hereinafter referred to as “Will”] of Late Sh. Ram Chander.

3. For convenience, the parties shall be referred to by their array before the learned Single Judge. Appellant Nos.1 to 3 were Defendant Nos.2 to 4; Respondent Nos.1 to 3 were Plaintiff Nos.1 to 3; Respondent No.4 was Defendant No.1; Respondent Nos.5 to 9 were Defendant Nos.5 to 9, respectively. FACTUAL MATRIX

4. The facts giving rise to the present Appeal are that the Plaintiffs instituted CS(OS) No. 1546/2009 seeking, inter alia, declaration, partition, permanent injunction, rendition of accounts, mesne profits and damages in respect of the estate of Late Sh. Ram Chander. The Defendant Nos.1 to 7 filed a joint Written Statement in which they Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 2 of 17 relied upon the Will executed by Late Sh. Ram Chander. The Will is stated to have been executed in favour of the Defendant No.1 and the predecessors-in-interest of the Defendant Nos.2 to 4, to the exclusion of the Plaintiffs and Defendant Nos.8 and 9. The Will bears two attesting witnesses, namely, late Shri Ved Pal (expired on 08.12.2008) and Shri Ajay Gopal, the only surviving attesting witness.

5. Issues were framed by the learned Single Judge on 09.08.2011, inter alia, on the legality and validity of the Will. An affidavit by way of examination-in-chief of Shri Ajay Gopal was placed on record on

31.08.2015. Despite service of summons, Shri Ajay Gopal did not present himself for cross-examination on multiple dates. On

07.12.2017, the witness was present in Court but, according to the record, learned counsel for the Plaintiffs declined to cross-examine him on the basis that only a certified copy of the Will and not the original was then on record. Thereafter, the Defendants sought production of the original registered Will by summoning the record clerk/official from the Sub-Registrar‟s office; that official was examined and cross-examined on 16.04.2018 and the learned Single Judge recorded the production of entries relating to the Will.

6. Following the witness‟ absence, the Defendants filed I.A. No. 5424/2018 for issuance of summons to Shri Ajay Gopal, which was allowed on 23.04.2018. In compliance with Court directions, the Defendants deposited process fee and diet money. Despite service of summons, Shri Ajay Gopal failed to appear on the subsequent date

28.05.2018; on the evening of that date, the Defendant Nos.2 and 4 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 3 of 17 visited his residence and were informed by Shri Ajay Gopal that he would not appear as a witness. The Defendants thereafter discovered that Plaintiff No.3 had been approaching the witness and had induced him not to depose; the witness stated that as he was related to both families, he did not wish to be drawn into the controversy. Thereafter, the Defendants, having one attesting witness dead and the other refusing to appear, filed I.A. No. 9308/2018 under Order XVI Rule 1 read with Section 151 of the CPC seeking permission to produce the scribe who was present at the time of execution/registration of the Will.

7. By an order dated 19.03.2019, I.A. No. 9308/2018 was allowed and the affidavit of Shri Deepak Sharma (the scribe who drafted and registered the Will) was filed on 06.04.2019. Shri Deepak Sharma tendered his examination-in-chief on 29.04.2019 and was partly cross- examined. However, on account of repeated adjournments sought by the parties, inter alia owing to the COVID-19 pandemic, and due to the witness‟ intermittent illness and subsequent unwillingness to continue, his cross-examination remained incomplete. On 21.07.2023, learned counsel for the Defendants recorded that the defence evidence stood closed.

8. On 07.02.2024, however, Shri Ajay Gopal contacted Defendant No.2 and expressed his willingness to attend and give evidence, stating that his earlier non-attendance had been on account of threats and undue influence exerted by Plaintiff No.3. Consequent thereto, the Defendant Nos. 1 to 7 filed I.A. No. 4224/2024 under Order XVI Rule Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 4 of 17 1 read with Section 151 of the CPC seeking leave to summon and examine Shri Ajay Gopal as a witness in the witness box for recording his examination-in-chief and for cross-examination.

9. The Plaintiffs opposed I.A. No. 4224/2024 on the grounds that the Defendants had voluntarily closed their evidence; that coercive measures under Order XVI of the CPC were not invoked earlier; that the plea of being „won over‟ was belated and unsubstantiated; and that reopening evidence at a late stage would cause further delay in a suit instituted in 2009.

10. The learned Single Judge after hearing arguments from both sides, vide Impugned Order, dismissed the application predominantly on the following grounds: i. that the Defendants had consciously elected to close their defence evidence on 21.07.2023 despite the attesting witness having been available earlier; ii. that the Defendants had not availed themselves of the coercive processes under Order XVI Rules 10 and 12 of the CPC at the relevant time (proclamation/warrant/attachment/fine) to secure the attendance of Shri Ajay Gopal; iii. that the plea that the witness had been „won over‟ or threatened by the Plaintiffs had not been placed on record contemporaneously and was raised belatedly; and iv. that the suit being of long standing (instituted in 2009), Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 5 of 17 indulgence at the stage of final arguments would occasion further delay and was therefore not permissible. CONTENTIONS OF THE APPELLANTS

11. Learned senior counsel for the Appellants submitted that the Will is a document of central consequence and that the attestation of the instrument is material to its probative value. It was urged that Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 [hereinafter referred to as “BSA”] places the attesting witness at the heart of proof where an attested document is in issue and that one attesting witness should ordinarily be called, if alive and subject to process of the Court.

12. Reliance was placed upon Shah Babulal Khimji v. Jayaben D. Kania1 to contend that an order which effectively forecloses the valuable right of a party to lead material evidence on the central issue of the case amounts to a “judgment” within the meaning of Section 10 of the DHCA, and is therefore appealable.

13. Reliance was also placed on the fact that an affidavit constituting examination-in-chief of Shri Ajay Gopal was placed on record on 31.08.2015, that I.A. No. 5424/2018 for summons to the witness was allowed on 23.04.2018, that process fee and diet money were deposited, and that the Defendants personally approached the witness at his residence when he failed to attend the Court on

28.05.2018. It was submitted that the bona fides of the Defendants in 1 (1981) 4 SCC 8 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:25.09.2025 12:24:26 FAO (OS) 42/2025 Page 6 of 17 their repeated attempts to secure his presence are evident from the record.

14. It was further submitted that the Defendants had, in good faith and as an alternative mode of proof, examined Shri Deepak Sharma, scribe of the Will, after obtaining permission through I.A. No. 9308/2018 when the attesting witness repeatedly declined to appear, and that the closure of evidence recorded on 21.07.2023 was necessitated by the witness‟ refusal to appear and by uncontrollable disruptions, including those arising from the COVID-19 pandemic.

15. Reliance was placed on K.K. Velusamy v. N. Palanisamy2 and Shyam Sel and Power Ltd. v. Shyam Steel Industries Ltd.3 to contend that the Court‟s discretion to permit reopening of evidence or production of additional evidence must be exercised to advance the cause of justice, particularly where the evidence is highly material and its absence may result in failure of justice.

16. Learned senior counsel emphasised that on 07.02.2024, Shri Ajay Gopal re-approached Defendant No. 2, who expressed willingness to depose, explaining that his earlier non-attendance was due to threats/undue influence by Plaintiff No. 3, and contended that the learned Single Judge ought to have considered these allegations and exercised its discretion to permit the witness‟ evidence subject to suitable safeguards, rather than dismissing the application on the ground of belatedness.