CW - 4809/2008 - Pravina & Ors. Vs. Arvind Singh Mewar. : Judgment dt.18.8.08 1/2 S.B. CIVIL WRIT PETITION NO.4809/2008 Pravina & Ors. Vs. Arvind Singh Mewar. Date of order : 18th August, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Dilip Kawadia for the petitioners. Mr. Arun Bhansali for the respondents. --------- 1. This writ petition is directed against the order dated 17.5.2008 whereby the learned trial court has rejected the application of the defendant under Order 11 Rule 12 and 14 C.P.C. seeking to produce the Will in favour of the plaintiff. 2. The learned counsel for the petitioner-defendants submits that in the written statement he had not admitted the contents of the Will dated 15.5.1984 while in para 3 he had only pleaded ignorance about the grant of probate in faovur of the plaintiff on the Will in question executed by late Shri Bhagwat Singh Mewar in favour of the plaintiff. He, therefore, submits that the learned trial court has erred in rejecting the said application seeking production of the Will. 3. Mr. Arun Bhansali, learned counsel appearing for the plaintiff-respondent on the side opposite has submitted that the execution of the Will dated 15.5.1984 and the plaintiff as well as Mr. A. Subramanyam being Executors of the Will was not disputed by the defendant in para No.2 of the written statement Annex.2 whereas in para 3, the defendant only stated that whether the probate in respect of the said Will has been issued by the Rajasthan High Court or not, is not within the knowledge and he submits that issue No.2 regarding CW - 4809/2008 - Pravina & Ors. Vs. Arvind Singh Mewar. : Judgment dt.18.8.08 2/2 the said probate in the Will dated 15.5.1984 has already been framed by the learned trial court, burden of which is kept on the plaintiff. He, therefore, submits that the plaintiff would produce the probate certificate in question before the learned trial court, however, in view of the admission of the execution of the Will on 15.5.1984 having not been specifically disputed and denied by the defendant in para No.2 of the written statement and no issue in respect to that having been framed by the learned trial court, the production of the said Will is neither necessary nor relevant in the present suit for cancellation of sale deed and possession filed by the plaintiff. 3. Having heard learned counsels and upon perusal of the impugned order, this Court is satisfied that the learned trial court has not committed any error in rejecting the application under Order 11 Rule 12 C.P.C. seeking production of the Will dated 15.5.1984 in question. Since in view of pleadings of the parties, the issue No.2 regarding probate of the said Will dated 15.5.1984 has already been framed by the learned trial court and the plaintiff is bound to lead his evidence in that regard in said suit, the production of the Will itself cannot be considered to be relevant in the present suit. 4. The writ petition is found to be devoid of merit. The same is accordingly dismissed. [ DR. VINEET KOTHARI ], J. item No.68 babulal/-