High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 5 5 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 123 Amrik Singh Surjit Kaur CR-6831-2024 (O&M) Date of decision: 13.01.2025 Vs. ...Petitioner(s) ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Fariad Singh Virk, Advo for the petitioner. dvocate NIDHI GUPTA, PTA, J. *** Present petition under Art r Article 227 of the Constitution of India is fil is filed seeking setting aside of t of the order dated 22.10.2024 (Annexure P7) P7) passed by the learned Civil Jud il Judge (Junior Division), Patiala, whereby the the application of the petitione
Legal Reasoning
tioner/defendant for declaring DW3/Udham S am Singh as hostile and recalling the g the said DW3/Udham Singh for re-examinatio ation/cross-examination, has been d en dismissed. 2. Brief facts of the case are t are that the respondent/plaintiff had filed a civ a civil suit (Annexure P1) for declar eclaration to the effect that the unregistered W ed Will dated 24.08.2017 in favour our of the petitioner/defendant be declared ill d illegal, null and void. 3. During trial, the petitioner pe had examined DW1/Jitender der Singh and DW3 who are margin rginal witnesses of the said Will. DW1 had sup supported the version of the petit petitioner by tendering Affidavit (Annexure P3) P3). DW3 had deposed in the Cou Court mentioning himself to be attesting witn witness of Will dated 24.08.2017/E 17/Ex.D1 by way of his Affidavit SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) Ex.DW3/A (An (Annexure P4). However, in his cr is cross-examination, he denied Page 2 of 5 5 (cid:1) the execution tion of the said Will dated 24.08.2 08.2017 (Ex.D1) and stated that the said docum ocument (Ex.D1) does not bear his s his signatures. 4. Accordingly, the petition itioner filed application dated 04.09.2024 (A 4 (Annexure P5) for recalling the D he DW3/Uddham Singh seeking n permission to t ine re-examine/cross-examine the said witness. The respondent/pl t/plaintiff duly filed reply dated ‘N d ‘Nil’ (Annexure P6) to the said application. V . Vide the impugned order dated ated 22.10.2024 (Annexure P7), the said applic pplication of the petitioner (Annex nexure P5) has been dismissed. Hence, presen esent revision petition. 5. Learned counsel for the p he petitioner inter alia submits that from the the above facts, it is borne out tha t that during cross-examination, DW3 had resil resiled from his statement made be e before the Assistant Collector, First Class, Pat , Patiala. As such, the said witness ess was required to be declared hostile; and fo for this reason, the petitioner/de r/defendant also had the right to re-examine/cr e/cross-examine him. It is submitte itted that as per the statement dated 26.05.2 05.2018 (Annexure P8) made by D by DW3/Uddham Singh, he had categorically s lly stated as under: -
Legal Reasoning
“It is stated on oath that I am p noted address that Smt. Gurpreet resident of H.No.B6/6 Anand Naga fa favour of Amrik Singh son of Karn Sanour. I was present at the time will reduced into writing in front o fu full conscious mind at the time signatures on this will as witnes annexed on court file and also see m permanent resident of above reet Kaur widow of Karam Singh Nagar B had executed this will in Karnail Singh resident of Village time of writing of this will. This ront of me. Gurpreet Kaur was in ime of executing this will. I put itness. I have seen a will Ex-Pl o seen original will. I identity my SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) signatures on this will, which 26.05.2018.” ich are totally correct. Dated 6. However, in his cross-ex examination, DW3 has now Page 3 of 5 5 (cid:1) denied the e e execution of the Will. Learned ned counsel for the petitioner submits that t
Decision
at therefore in view of the above ove facts, if DW3 is not recalled, then the pet petitioner shall be condemned ned unheard and shall suffer e irreparable loss; whereas no prejudice lo ice shall be caused to the respondent/pl t/plaintiff. 7. 8. No other argument is raise aised on behalf of the petitioner. I have heard learned cou counsel for the petitioner and perused the ca e case file in great detail. 9. No doubt, the admitted tted facts are that DW3 had tendered his A his Affidavit (Ex.DW3/A) and in his his examination-in-chief, he had deposed ment entioning himself to be the attesti testing witness of the Will dated 24.08.2017 th 7 thereby proving the same as Ex s ExD1. At that time the cross- examination o on of DW3 was deferred. DW3 h 3 had even made a statement dated 26.05.2 .05.2018 before the Assistant Co t Collector, First Class, Patiala (Annexure P8) P8) wherein he had stated himsel self to be the attesting witness of the Will in ll in question. However, subsequen uently in his cross-examination, DW3 had res resiled from his previous statemen ents and had denied that he is witness of the f the Will in question and also denie enied the execution of the Will. In these circu ircumstances, the petitioner had f ad filed the present application dated 04.09.2 09.2024 (Annexure P5) was filed se d seeking re-examination/cross- examination o on of DW3. SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) 10. However, it is admitted itted that during the cross- Page 4 of 5 5 (cid:1) examination o on of DW3, the counsel for the de e defendant was present in the Court. Howev wever, he had not objected to the the cross-examination of DW3. Even no reque equest was made at the said time time by learned counsel for the petitioner for for declaring DW3 hostile; or for for re-examining DW3. In these circumstances nces, the learned trial Court has cor correctly held that now the plea of plaintiff ca f cannot be allowed. Relevant rea easoning of the learned trial Court while re le rejecting the application of the pe e petitioner is as follows:- “Perusal of the file shows that th DW-3 Udham Singh who had dep his affidavit Ex.DW3/A and he m attesting witness of Will dated same as Ex.D1. When he was cro execution of this Will and state Ex.D1 does not bear his signatur was completed and the case was fo for evidence of the defendant. O the cross-examination of this witn defendant was present and he d examination of DW-3 Udham Sing learned counsel for the defendan hostile. Learned counsel for the request for re-examining the said next date of hearing that the pr moved. Since, the defendant testimony of DW Udham Singh recorded, so the defendant now c Moreover, the fact that the said w on the Will in cross-examination defendant to cross-examine this w filling up the lacuna in case the de fil examine or re-examine this witn the defendant during his cross- of witness can only be allowed fo out issues and for clarifying a at the defendant had examined deposed in the court by way of he mentioned himself to be the ted 24.08.2017 and proved the s cross-examined, he denied the stated that the said document ature. Thereafter, his testimony was adjourned to the next date nt. On the day of completion of witness, learned counsel for the he did not object to the cross- Singh. No request was made by ndant for declaring this witness the defendant never made any said witness as well. It is on the he present application has been ant has not objected to the ingh at the time when it was ow cannot take up the said plea. aid witness denied his signatures tion is not enough to allow the this witness. It would amount to he defendant is allowed to cross- witness who has not supported -examination. Re-examination ed for further elaboration of left a new fact but in the present SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1) Page 5 of 5 5 (cid:1) case, no such plea has been tak application. Reliance is paid on t Maple Logistics Pvt. Ltd, Vs. M others 2017(3) Law Herald 2201 2014(56) R.C.R. (CivilI31 and M/s Vs. Lakhwinder Singh and oth 432.” taken by the defendant in the on the judgments titled as M/s s. M/s Riba Textile Pvt. Ltd. & 2201, Tarsem Kaur Vs. Javed Ali M/s Ganesh Mal Nanak Chand others 2010(65) R.C.R. (Civil) I find no error in the abo above reasoning of the ld. trial Learned counsel for the pe e petitioner has been unable to 11. Court. 12. controvert the t the above said factual and legal p gal position; and in fact, admits that the learn earned counsel representing the de e defendant before the learned trial Court was was not vigilant enough. Dismissed. 13. Pending application(s) if an if any also stand(s) disposed of. 13.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.22 10:42 I attest to the accuracy and integrity of this document (cid:1)