IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.293 of 2006 Judgment reserved on: 10.4.2008. Date of decision: 11.4.2008. Smt.Batti Devi and another ....Petitioners -Versus- Smt.Bimla Devi and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Petitioners: M/s.M.S.Thakur & Inderjit Singh, Advocates. For Respondents: Mr.K.R.Thakur, Advocate Deepak Gupta,J. This petition is directed against the order of the learned Senior Sub Judge, Shimla whereby he has rejected the application filed by the defendants to produce on record certain documents. Briefly stated, the facts of the case are that the respondents (hereinafter referred to as the plaintiffs) filed a suit for declaration to the effect that they are co-owners in possession of 1/4th shares alongwith defendant No.1 in the land left behind by Sh.Narotam Dass. The plaintiff No.1 is the widow, plaintiffs 2 & 3 are the children of Narotam Dass and defendant No.1 is another widow of Narotam Dass. It was also alleged in the suit that the Will of Narotam Dass set up by defendant No.2 is a false, forged and fabricated Will and as such is null and void. 2 This suit was contested by the defendants. The defendant No.2 in his written statement took up the plea that Narotam Dass had executed a legal and valid Will in favour of defendant No.2 in the year 1998. Issues in the suit were framed on 7.12.1992. One of the issues framed was whether the deceased Sh.Narotam Dass had executed a legal and valid Will in favour of defendant No.2. The plaintiffs’ evidence was recorded and the case was set down for the evidence of the defendants on 19.4.2005. For this date no steps were taken to summon the witnesses and on 19.4.2005 no witnesses were present. On the request of the defendants the case was adjourned to 23.5.2005. It appears that the Court was not functioning on 23.5.2005 and the case was taken up for effective hearing on 4.7.2005. A notice had been pasted in the notice board that case fixed for 23.5.2005 would be taken up for effective hearing on 4.7.2005. On 4.7.2005 also no DWs were present and the case was adjourned to 23.8.2005. On 23.8.2005, two DWs were present. One was given up and the other was discharged on the request of the counsel for the defendants on the ground that the original Will had not been brought by the defendants. The case was adjourned to 5.10.2005. On the said date again no witnesses were present and last opportunity was given for 23.11.2005. On 23.11.2005, four witnesses were present. They were discharged at the request of the counsel for the defendants on the ground that the original Will is not on the record. The case was then adjourned to 4.1.2006. On this date, six witnesses were present but were discharged since in the 3 meanwhile an application had been filed to place on record the documents. A perusal of this application makes interesting reading. In the application its is stated that the documents were available with the defendants but inadvertently those remained unfilled by the counsel and this aspect came in the knowledge only on the last date of hearing. This averment does not appear to be correct since on the earlier dates adjournment was sought on the ground that the Will had not been brought. It was therefore prayed that the defendants be permitted to place on record the original Will dated 6.12.1992 and copy of the Will dated 8.11.1998. This application was contested and was dismissed by the learned trial Court by the impugned order. At this stage it would be pertinent to point out that in the original list of witnesses filed by the defendants in May, 2005 there was no mention of any witness who was to produce the original Will dated 8.11.1998. Surreptitiously and without seeking permission of the Court under Order 16 Rule 1(3) CPC another witness was sought to be summoned to prove the original Will dated 8.11.1998. The provisions of Order 16 Rule 1(3) read as follows: “16(1)(3):The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.” It is clear that only those witnesses can be summoned whose names are mentioned in the list of witnesses and in case any other witness has to be summoned the Court must record reasons for doing 4 so. The parties must seek permission of the Court to summon such witnesses. Obviously, a formal application has to be moved. This was not done in the present case and surreptitiously by means of an application to deposit diet money, orders were obtained to summon another witness. Copy of the Will could not have been permitted to be placed or proved on record in the absence of any averment as to where the original Will was. Therefore, this Will cannot be permitted to be produced or proved at this stage especially in view of the conduct of the defendants in delaying the matter by making false allegations in the application and surreptitiously trying to get a witness summoned without seeking formal permission from the Court. As far as the Will dated 6.12.1992 is concerned, I find that even in the original list of witnesses there is mention of the witnesses who were to prove this Will as well as the Sub Registrar, Suni and the petition writer who were to bring the record of the Will dated 6.12.1992. The original Will was also produced with the application. The evidence of the defendants is still going on and therefore I feel that interest of justice will be served in case the defendants are allowed to produce and prove this Will. This is however subject to payment of costs of Rs.2000/-. The petition is allowed to the aforesaid extent. The plaintiffs are permitted to produce and prove the Will dated 6.12.1992 but they shall not be permitted to produce and prove the Will dated 8.11.1998. Parties through their counsel are directed to appear 5 before the trial Court on 19th May, 2008 on which date costs shall be paid by the defendants. In case costs are not paid the present petition shall be deemed to have been dismissed. April 11, 2008. ( Deepak Gupta ), PV Judge.