IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 24 of 2010. Date of decision: 23.2.2010. Harmehtab Singh Rarewala …..Petitioner. Vs. Jagteshwar Prit Singh Rarewala & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. A.K.Vashista, Advocate. For the Respondents : Mr. Romesh Verma, Advocate. Kuldip Singh, Judge (Oral). This petition has been filed under Art. 227 of the Constitution of India against the order dated 4.1.2010 passed by Civil Judge (Senior Division), Kasauli in case Harmehtab Singh Rarewala vs. Jagteshwar Prit Singh Rarewala and others. The learned trial court vide order dated 4.1.2010 has rejected the request of the petitioner- plaintiff for adjournment of the case for production of evidence on some other date. 2. The petitioner had filed an application dated 3.1.2010 in the trial court stating therein that the original will is lying in some other case at Ludhiana and some important documents were also lying in some other case at Khanna. The case was earlier fixed on 2.1.2010 and after that the case was ordered to be fixed on 4.1.2010 and between these two dates there was holiday and the courts at Khanna Whether the reporters of the local papers may be allowed to see the Judgment? …2… and Ludhiana were to open only on 4.1.2010. In these circumstances, it was not possible for the petitioner to serve the witnesses at Khanna and Ludhiana because on 3.1.2010 it was Sunday. The petitioner- plaintiff had therefore, requested some time for production of witnesses. The application was opposed by the defendants and ultimately the learned trial court rejected the prayer of the petitioner vide order dated 4.1.2010. 3. The learned counsel for the petitioner has submitted that vide order dated 2.12.2009 in CMPMO No. 565 of 2009, the order dated 15.9.2009 of the trial court was set-aside by this Court by observing that petitioner had undertaken to produce and examine his entire evidence on any two consecutive dates which may be fixed by the trial court. The parties had given undertaking to appear before the concerned court on 14.12.2009 and the trial court was ordered to fix a date for recording the evidence, which was ordered to be concluded within a period of eight weeks from that date. It was further ordered that official witnesses required to be summoned shall be done expeditiously as the petitioner had undertaken to serve them dasti, if need so arises. 4. The learned counsel for the petitioner has submitted that in fact the petitioner had taken dasti summons to Ludhiana and Khanna for serving the witnesses but the records were not produced from those courts on the ground that courts at Ludhiana and Khanna were closed. The learned counsel for the respondents has submitted that no material has been produced by the petitioner in support of the contention made by learned counsel for the petitioner and therefore, …3… he has denied the statement made by the learned counsel for the petitioner. 5. There is no reason to disbelieve the statement of learned counsel for the petitioner on this limited controversy. On 2.12.2009 this court had given an opportunity to the petitioner to produce the evidence and he was also permitted to take dasti summons. The learned counsel for the petitioner has submitted that in fact dasti summons were taken but for reasons beyond the control of petitioner the record could not be produced. The learned counsel for the respondents has submitted that the prayer made by the petitioner for adjournment of the case on 4.1.2010 could not have been granted in view of order dated 2.12.2009 passed by this court. It has also been submitted that now at this stage no further permission can be granted to the petitioner without reviewing the order dated 2.12.2009. I have gone through the order dated 2.12.2009 passed by this court in CMPMO No. 565 of 2009. This court vide order dated 2.12.2009 had permitted the petitioner to take dasti summons. The petitioner as per learned counsel for the petitioner had in fact taken dasti summons for serving the witnesses but on account of holidays at Khanna and Ludhiana the record could not be produced. In these circumstances, the petitioner cannot be fully blamed for non-production of the record and witnesses on 4.1.2010. 6. It has been submitted on behalf of the petitioner that suit of the plaintiff is based upon the will and the original will is lying in some court at Ludhiana. The substantial rights of the parties are involved in the case, therefore, in the interest of justice the petitioner …4… is given only one opportunity to lead evidence and prove documents subject to payment of costs. In these circumstances, the order dated 4.1.2010 is set-aside. The petitioner-plaintiff is given only one opportunity to produce his entire evidence on a date to be fixed by the learned Civil Judge (Senior Division), Kasauli. It is, however, made clear that on the date to be fixed by the learned trial court, the petitioner/ plaintiff shall produce his entire evidence and he can take dasti summons for the service of witnesses at Khanna and Ludhiana, but the trial court shall not give any further opportunity to petitioner/ plaintiff irrespective of the fact whether any witness of the petitioner/ plaintiff is served or not for the date fixed. It will be the sole responsibility of the petitioner to produce the witnesses and record on the date fixed by the learned trial court for the evidence of petitioner/ plaintiff. The petition is allowed on above terms subject to costs of Rs.2000/- which shall be paid by the petitioner/ plaintiff to the defendants in the court below before actually recording the evidence. February 23, 2010. ( Kuldip Singh ), (Hem) Judge.