CR No.6904 of 2009 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6904 of 2009 (O&M) Date of Decision: 13.08.2010 Mr.Deepak Chadha ..Petitioner Vs. Mrs.Rupa Anand & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Anandeshwar Gautam, Advocate, for the petitioner. Mr.Hitesh Kaplish, Advocate, for respondent No.1. Mr.Munish Behl, Advocate, for respondent No.2. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 9.10.2009, attached as Annexure P-3/A with this Petition, vide which CR No.6904 of 2009 2 evidence of the petitioner was closed and also the order dated 18.11.2009 vide which application made to recall the order dated 9.10.2009 was dismissed. Order dated 9.10.2009 reads as under:- “ Today case was fixed for PWs being last and final opportunity. No PW is present. Neither warrant issued against the witness as per order dated 10.8.2009 received back. Perusal of the file shows that plaintiff has availed several opportunities but has failed to conclude his entire evidence. Perusal of the file further shows that as per directions of the court, plaintiff could not get the service effected of the witness through bailable warrant also. Hence as per order dated 10.8.2009 and finding no justification for further adjournment for PWs the plaintiff evidence is ordered to be closed by court order. Now to come up on 30.10.2009 for DWs at own responsibility. List of witnesses be filed within seven days.” Though the remedy with the petitioner to challenge the order was by way of Revision, but the petitioner filed an application for recalling the order dated 9.10.2009. In the application moved for recalling the order in stead of pleading the grounds available to the petitioner for review of an order, the petitioner raised a new point wherein the stand was taken by the petitioner, that until and unless all modes of service are availed to secure the presence of marginal witnesses, the applicant/appellant cannot proceed under Sections 69 and 71 of the Indian Evidence Act. CR No.6904 of 2009 3 Other ground on which, recall was sought was, that court was to record a specific satisfaction with respect to both the witnesses and in case it was held that the presence cannot be secured under any mode, then opportunity was required to be given to the plaintiff/petitioner to conclude the evidence in terms of Sections 69 and 71 of the Indian Evidence Act. In order to appreciate the contention raised, it would be necessary to reproduce Sections 69 and 71 of the Evidence Act, which read as under:- “69. Proof where no attesting witness found-- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 71. Proof when attesting witness denies the execution-- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” Reading of the impugned order vide which evidence of the petitioner was closed, would show, that the order has no relevance, whatsoever, with the provisions of Sections 69 and 71 of the Indian Evidence Act. It is not understood as to how, this application was made for recall of the order to avail the opportunity under Sections 69 and 71 of the Indian Evidence Act, as it was nobody's case, that the witnesses can not be found at the given address or were not available. The question was, as to CR No.6904 of 2009 4 whether the witnesses were evading service and coercive steps could not be taken for their presence. Learned Trial court, however, was not justified in recording, that allowing of the application would amount to review, which was not permissible. This finding of learned trial court is perverse as the civil court can review the order, if the party satisfies the court, that the grounds of review fall under Order 47 Rule 1 of the Code (for short the Code). The reading of the application shows, that points raised for recall, were not the grounds on which the petitioner could seek the review, as the remedy was to challenge the order in the superior court. It may be noticed, that the learned court complied with the provisions of Order 16 Rule 10 of the Code in ordering issuance of bailable warrants for service of the witnesses. If the witnesses were not served, no fault could be attributed to the procedure adopted by the learned trial court, or the petitioner. Reliance of the learned counsel for the petitioner in support of the revision petition, that the order closing the evidence and that the order passed vide which application for recall was dismissed, is contrary to law laid down by Hon'ble Supreme Court in the case of Babu Singh and others Vs. Ram Sahai @ Ram Singh, (2008) 14 SCC 754, is misconceived, as the Hon'ble Supreme Court was dealing with the question as to when the provisions of Section 69 of the Evidence Act were applicable to the said case. Hon'ble Supreme Court in the case of Babu Singh and others Vs. Ram Sahai @ Ram Singh (supra) laid down the following law:- CR No.6904 of 2009 5 “18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved. 23. In Amal Sankar Sen V. Dacca Coop. Housing Society Ltd., it was held: AIR p.352). As we have already stated the proposition of law cannot be challenged at this date. In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the process under Order 16 Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act. The party, namely, the plaintiff, must move the Court for process under Order 16 Rule 10 of the Code of Civil Procedure when a witness summoned by him has failed to obey the summons but when the plaintiff does move the court but the court refuses the process asked for we do not see why Section 69, Evidence Act, cannot be invoked. The other view would place the plaintiff in an impossible position when the witness is an attesting witness CR No.6904 of 2009 6 to the document on which he has brought the suit,and the court refuses coercive processes contemplated in Order 16 Rule 10 of the Code of Civil Procedure.” As already observed above, no application was moved by the petitioner before the learned trial court. In the absence of the application it was not permissible for the petitioner, to seek review on this ground. Learned counsel for the respondents vehemently contended, that the plaintiff/petitioner was intentionally delaying the proceedings for the reason, that suit filed by the plaintiff/petitioner was not maintainable. The petitioner prayed for the following relief in the suit filed:- “ Suit for declaration to the effect that Sh. Om Paul Chadha bequeathed his properties per his Holograph Will dated 7.10.1975 in favour of plaintiff and said will is last testament of Shri Om Paul Chadha and is legal, valid and had been executed by Sh. Om Paul Chadha in his own wisdom having sound disposing mind in presence of witnesses and without any pressure or coercion from any quarters, hence plaintiff has exclusive right to succeed for the properties left by Shri Om Paul Chadha being beneficiary of the said last legal valid holograph will dated 7.10.1975. AND Suit for declaration to the effect that the will alleged to have been executed by Mrs. Shanta Chadha at Sr. No.1196, Book CR No.6904 of 2009 7 No.3, Vol. No.255, Page No.168 is null and void as Mrs. Shanta Chadha was having no disposable rights nor is owner, hence she was unable to transfer/bequeath any interest in the property i.e. House No.1139, Sector-8C, Chandigarh in view of the Holograph Will dated 7.10.1975 of Shri Om Paul Chadha. AND Suit for permanent injunction restraining the defendant Mrs. Rupa Anand from creating any third party interest in any manner at House No.1139, Sector 8-C, Chandigarh as she is neither the owner, nor in possession of house No.1139, Sector- 8-C, Chandigarh and nor has she any transferable rights as plaintiff is the exclusive beneficiary and successor of the entire estate of Shri Om Paul Chadha in view of the last testament i.e. Holographic Will of Shri Om Paul Chadha. AND Suit for rendition of accounts by directing the defendant No.1 to render complete true accounts in respect of moneys withdrawn from different banks, encashment of share/units certificates etc. and restore those amounts to the plaintiff.” The contention of the learned counsel for the respondents was, that the petitioner could seek letter of administration or probate on the basis of alleged Will, said to have been executed by Om Paul Chadha or in any case set up his claim to the properties on the basis of Will alleged to have been executed. CR No.6904 of 2009 8 The contention of the learned counsel for the respondents, therefore, was, that the suit has been filed with an intention to defeat the rights of the respondents under a Will executed in their favour, specially when the Will set up by the plaintiff is not a genuine Will. This is the reason why the attesting witnesses are not being summoned to attend the court, and nor any steps were taken by the plaintiff-petitioner to serve these witnesses. On consideration, I find no force in the contention of the learned counsel for the plaintiff-petitioner, as far as the challenge to the order dated 18.11.2009 in the application moved by the petitioner, is concerned. The learned trial court could have only recalled the order in case grounds for review were made out and not on the grounds which were not urged when the impugned order was passed. However, I find force in the contention of the learned counsel for the petitioner as far as challenge to the order dated 9.10.2009 is concerned, reading of the order would show, that though the learned trial court had given last opportunity to the plaintiff-petitioner to lead his evidence, but at the same time, the learned court was to see whether the petitioner-plaintiff had taken steps to summon the witnesses. Reading of the impugned order reproduced above, would show that plaintiff-petitioner had taken steps for issuance of bailable warrants, but the witnesses were not present. Learned court has not recorded any finding as to whether bailable warrants were executed or not. In case it was proved, that the bailable warrants were served on the witnesses, and they had chosen not to appear in the case, in that event it was obligatory on the part of the CR No.6904 of 2009 9 learned trial court to have issued non-bailable warrants for their arrest, or should have taken other coercive steps by writing to the Superintendent of Police, concerned or to see, that warrants were executed but the petitioner could not be made to suffer for the lapse of executing agency, in effecting service. Learned trial court in the facts and circumstances of the case should have permitted the petitioner to take steps to serve the summoned witnesses by giving further opportunity. In the absence of any fault on the part of the plaintiff-petitioner in taking steps to serve the summoned witnesses,punitive order of closing evidence could not be passed. For the reasons stated, the impugned order dated 9.10.2009, vide which evidence of the petitioner was closed, is set aside and the plaintiff-petitioner is granted two more opportunities to conclude his evidence, with a direction to the learned trial court to use coercive method for getting the presence of summoned witnesses, in terms of Order 16 Rule 10 of the Code or by issuing non-bailable warrants for their presence. If so advised dasti summons can also be issued for service of the witnesses. Revision disposed of in above said terms. No costs. 13.08.2010 (Vinod K.Sharma) rp Judge