Civil Revision No.3556 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.3556 of 2008 Date of decision: September 29, 2008 Harnek Singh and Another …..PETITIONERS Versus Labh Singh and Another …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Sameer Sachdeva, Advocate for the petitioners. Mr Chanderdeep Singh, Advocate for respondent No.2. T.P.S.MANN, J. (Oral): As per the Office report dated 25.9.2008, respondent No.1 has already been served. In spite of the same, neither the said respondent nor any one on his behalf has put in appearance. He is, accordingly, proceeded against exparte. Challenge in the present revision is to order dated 6.5.2008 passed by learned trial Court whereby evidence of the plaintiffs- petitioners on additional issue No.1A was closed by order. While passing the impugned order, learned trial Court observed that only one PW was present from the side of the plaintiffs, who was examined and no other PW was present. As it was the last opportunity to the plaintiffs to lead evidence on additional issue, therefore, no case was made out for granting more time to the plaintiffs to lead evidence in respect of the additional issue. Civil Revision No.3556 of 2008 -2- Learned counsel for the plaintiffs-petitioners has submitted that though the suit was filed by them in the year 2004 for granting the relief of declaration, yet on 10.8.2007 learned trial Court framed an additional issue to the effect, “ as to whether Jiwa Singh had executed a legal and valid Will dated 11.7.1990, if so, its effect?”. The onus of additional issue No.1A was upon the plaintiffs. The case was, thereafter, taken up by learned trial Court on 1.11.2007, but as the counsel who had been representing the plaintiffs earlier had expired, they engaged Mr Sarvpreet Singh Baweja, Advocate, who appeared on their behalf before learned trial Court and filed his power of attorney. The case was adjourned to 7.12.2007, but for reasons beyond their control, the plaintiffs could not produce any evidence on additional issue No.1A. The position remained the same even on the next two dates i.e 30.1.2008 and 29.2.2008. On 17.4.2008, the plaintiffs examined one PW, a Clerk from the Office of Sub Registrar and his statement was recorded. Even on the subsequent date i.e. 6.5.2008, Deed-writer was examined by the plaintiffs so as to prove execution of Will dated 11.7.1990. The plaintiffs were also to examine one of the attesting witnesses, but the said witness was not available and for that reason, he could not be produced before the learned trial Court on 6.5.2008. Though a request was made on their behalf to grant an adjournment but the same was declined by the learned trial Court by passing the impugned order. Prayer has, accordingly, been made for the grant of one last opportunity to the plaintiffs to secure the presence of one of the attesting witnesses of the Will and, that too, at their own responsibility so as to examine him in support of their case. Civil Revision No.3556 of 2008 -3- Learned counsel for respondent No.2 has opposed the prayer made on behalf of the plaintiffs-petitioners by submitting that the plaintiffs have already availed of five effective opportunities to examine their evidence on additional issue No.1A and therefore, no case was made out for the grant of another opportunity to them to examine their remaining evidence on additional issue No.1A. The dispute is between brothers, two on the one hand and two on the other. The plaintiffs have sought declaration to the effect that the judgment and decree dated 7.3.1992 passed in Civil Suit No.27 dated 27.1.1992 was illegal, null and void, unconstitutional and not binding upon their legal rights. Additional issue in respect of Will dated 11.7.1990 said to have been executed by Jiwa Singh was framed only on 10.8.2007. Thereafter, though the plaintiffs have been granted five effective opportunities for examining their entire evidence in support of the said issue, but they have failed to complete the same. They have already examined a Clerk from the Office of Sub Registrar, besides the Deed-writer in support of their case. They have yet to examine one of the attesting witnesses of the Will in question. By no stretch of imagination, it could be said that the plaintiffs were going to gain anything by delaying the trial proceedings. Under these circumstances, this Court is of the view that they deserve to be granted one last opportunity to examine the attesting witness of the Will in question. Civil Revision No.3556 of 2008 -4- Accordingly, the revision is accepted, impugned order closing evidence of the plaintiffs on additional issue is set aside and the plaintiffs are given one last opportunity to examine one of the attesting witnesses of the Will in question in support of their case, subject to payment of Rs.5000/- as costs. It would be the responsibility of the plaintiffs to make available the attesting witness of the Will before the learned trial Court on the date to be so fixed for his examination. September 29, 2008 (T.P.S.MANN) Pds. JUDGE