THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No. 1516 OF 2010 DT.5.8.2011 Between: Alapati Narasimha Rao … Petitioner And Gondi Sarojini … Respondent Counsel for the Petitioner: Sri N Sriram Murthy Counsel for respondent: Sri Ch Ravindra Babu The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No. 1516 OF 2010 ORDER: The present revision is filed questioning the order dated 9.12.2009 in I.A.No. 1092 of 2009 in O.S. No. 8 of 2005 passed by the Principal Senior Civil Judge, Tenali in dismissing the application filed to reopen the evidence of plaintiff and to examine one Kandimalla Vasanth Kumar who drafted Ex.A.3 will. The petitioner herein is plaintiff, who filed a suit in O.S No. 8 of 2005 on the file of the Principal Senior Civil Judge, Tenali seeking delivery of possession of the plaint schedule property from the defendant and to pay mesne profits and costs based on Ex.A.3 will dated 16.7.2000. The case of the respondent-defendant is that the will is not genuine and it is a forged one. The petitioner examined the attestors of the will who turned hostile, therefore he wanted to examine the scribe of the will and filed an application in I.A. No. 1092 of 2009 for reopening the evidence of plaintiff and to examine the scribe, which was dismissed. Hence, the present revision. The defendant-respondent filed a counter contending that after closure of the evidence of both the parties, a petition to adduce further evidence cannot be filed, therefore the petition is not maintainable. The Court below, on consideration of the matter, dismissed the said application, following the judgment of this Court in Bandiamuri Venkateswara Vs. Janikamma and others[1] wherein it is held that the status of a scribe who appended his signature on the Will as scribe could not be equated with that of attestor and that evidence of scribe cannot be relied upon as to proof of Will. It was also observed that the will is to be proved by the plaintiff by at least examining one of the attesting witnesses as per Section 68 of the Indian Evidence Act. Heard the learned counsel for petitioner and learned counsel for respondent and perused the material available on record. In the present case, the plaintiff has already examined two attestors but they did not support the case of the plaintiff and turned hostile. No doubt, in view of the judgment of this Court in Bandiamuri Venkateswara case (cited supra), the status of the scribe who appended his signature on the will as scribe cannot equated with that of the attestors and at least one of the attesting witness has to be examined. In fact, in Bandiamuri Venkateswara case, none of the attestors were examined, therefore it was held that by examining the scribe the will cannot be proved. But in the present case already two attesting witnesses were examined. Therefore, in the present case, it cannot be said that the petitioner is not entitled to examine scribe. In the circumstances of the case, I am of the opinion that though the attesting witness turned hostile, still it is open for the petitioner to establish that the will is genuine. The only legal requirement is to examine at least one of the attesting witness should be examined and in the present case, the plaintiff- petitioner herein has examined two witnesses and merely because the attesting witnesses turned hostile, it cannot be said that the will is not genuine. The genuineness or otherwise of the will depends upon various circumstances and examination of the scribe also could be one of the factors while deciding the genuineness or otherwise of the same, therefore, dismissing the application is unjust. In the circumstances, the order under revision dated 9.12.2009 in I.A. No. 1092 of 2009 in O.S. No. 8 of 2005 is set aside and accordingly, the revision is allowed. No costs. ______________ V. ESWARAIAH,J DATE: 5.8.2011 tvk THE HON'BLE MR JUSTICE V ESWARAIAH CIVIL REVISION PETITION No. 1516 OF 2010 DATE: 5.8.2011 [1] 2005 (3) ALT 502 (DB)