HIGH COURT OF CHHATTISGARH. BILASPUR 3-S, Writ Petition (Art. 227) No.913 of 2011 PETITIONERS/: .(Plaintiffs) RESPONDENTS/: (Defendants) 1. Smt. Uma Goswami, Wife of Late Shri Makhanpuri Goswami, aged about 59 years. 2. Ishwendrapuri Goswami, S/o Late Shri Makhanpuri Goswami, aged about 38 years. 3. Jagendrapuri Goswami, S/o Late Shri Makhanpuri Goswami, aged about 35 years. 4. Chandrikapuri Goswami, S/o Late Shri Makhanpuri Goswami, aged about 49 years. 5. Smt. Meera Goswami, Wife of Late Shri Tarapuri Goswami, aged about 51 years. 6. Sandeep Goswami, S/o Late Shri Tarapuri Goswami, aged about 19 years. 7. Khogendrapuri Goswami, S/o Late Shri Tarapuri Goswami, aged about 18 years. 8. Dharmeshpuri Goswami, S/o Late Shri Tarapuri Goswami, aged about 17 years. 9. Smt. Jyoti Goswami, Wife of Shri Ompuri Goswami, aged about 20 years. 10. Smt. Sarla Goswami, Wife of Late Shri Narendrapuri Goswami, aged about 43 years. 11. Devendrapuri Goswami, S/o Late Shri Narendrapuri Goswami, aged about 18 years. 12. Smt. Vimla Goswami, Wife of Shri Kalyan Bharti Goswami, aged about 53 years. 13. Smt. Radhika Goswami, Wife of Shri Poonam Bharti Goswami, aged about 40 years. All above Caste Goswami, R/o Purani Basti, Korba, Tahsil & Distt. Korba (C.G.) Versus 1. Udai Bharti S/o Late Shri Shyam Bharti, aged about 22 years, l' '"<S-s» "^ B --"•<.j JS s^' 2. Pratap Bharti S/o Late Shri Shyam Bharti, aged about 14 years, Minor through mother Smt. Heena Bai, Widow of Late Shri Shyam Bharti. 3. Smt. Heena Bai, Widow of Late Shri Shyam Bharti, aged about 42 years. All three Caste Goswami, R/o Pump House Colony, Quarter No.406, Korba, Police Station, Tahsil & Distt. Korba (C.G.) 4. State of Chhattisgarh, Through the District Magistrate, Korba, Tahsil & Distt. Korba (C.G.) 5. Kashmir Singh, S/o Jogendra Singh, R/o Gurunanak Fabrication, Stadium Road, Kprba, Tahsil & Distt. Korba (C.G.) {Writ petition underArticle 227 ofthe Constitution of India} Present: Mr. C.K. Kesharwani, counsel forthe petitioners. None present for respondents No.1 to 3 and 5; Miss Sangeeta Mishra, Panel Lawyer for the State/respondent No.4. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORDER (21-11-2011) 1. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged legality and propriety of the order dated 8-11- 2010 passed by the 2nd Additional District Judge (FTC), Korba in Civil Suit No.7A/2009, whereby the application for amendment in list of witnesses, filed on behalf of the petitioners herein, has been dismissed on the ground that the petitioners herein/plaintiffs have not filed any list of witnesses as required under Order 16 Rule 1 ofthe CPC, therefore, no amendmentcan be made. 2. The petitioners herein also prayed for exemption from filing typed copy of Annexure P-2 vide I.A.No.1 and also prayed for exemption from filing the application filed before the trial Court on which basis the order impugned has been passed. 3. On due consideration, I.A.No.1 is allowed at the peril of the petitioners herein.. j- • Soma 4. I have heard learned counsel for the parties on merits of the case, perused the order impugned, copies of order sheets and copies of other documents. 5. Learned counsel for the petitioners submits that in order to prove registered will i.e. registration of will and execution of will, evidence of two public servants of registration office and one Advocate who has drafted the will would be necessary, but the trial Court has dismissed the application filed on behalf of the petitioners herein for amendment in list of witnesses. Learned counsel further submits that if list of witnesses is not filed on behalf of the parties, it may be presumed that the parties want to examine only the parties and in these circumstances, no list would be necessary for the parties. Learned counsel also submits that on 11-5-2010, the case was listed for settling the date, but casually it has been written that the case has been fixed for evidence and again the case was adjourned for evidence for 22-6-2010, but the order dated 3-5-2010 clearly reveals that it was fixed only for settling the date and not for evidence. 6. Th,e order dated 3-5-2010 clearly reveals that the case was not fixed for evidence on 11-5-2010, but it was fixed for settling the date. In these circumstances, non-filing of any list on behalf of the petitioners herein was not mala fide. 7. During the course of arguments, learned counsel for the petitioners submits that he may prove registration of document by filing certified copy of registered document and, therefore, he only seeks permission to examine one Advocate for proving the execution of will and the Advocate will not attend the Court without service of process on him. 8. In the light of orders dated 3-5-2010 and 1 1-5-2010, virtually, the trial Court was under obligation to provide opportunity of filing list of witnesses, but by not providing such opportunity vide order dated 8-11-2010, the trial Court has committed illegality. !n these circumstances, issuance of notice to other respondents and observance of procedural law would be a futile exercise. 9. Consequently, the petition is allowed to the extent that the petitioners are permitted to adduce evidence of the Advocate who has drafted the will and they are also permitted to summon him through the assistance of the Couri:. No order as to costs. Sd/- T.P. Sharma • Judge ffl--