Amrit Lal Kapoor & Anr vs Kusum Lata Kapoor & Ors

3. In a suit for declaration of title and consequential relief in the nature of permanent prohibitory injunction, the defendants-appellants herein have set up a Will allegedly executed in their favour by late Shri Devraj Kapoor, deceased husband of plaintiff-respondent No.1. After the plaintiff had led her evidence in the suit, the defendants- appellants herein were called upon to adduce evidence in support of their case. While the defendants had yet to conclude their evidence, the parties reported to the Court that they were exploring the possibility of an amicable settlement amongst themselves. The compromise talks did not however fructify in any settlement with the result that on 16th December 2005, the parties reported failure of the attempt made in that direction whereupon the Court directed the defendants-appellants to produce all their witnesses except DW 1, Durga Singh on their own 3 responsibility. The Court further directed that if the defendants failed to produce the evidence as directed the same shall be deemed to have been closed.

4. One of the witnesses which the defendants-appellants had cited, was Shri Ashwani Kumar Kapoor working in the Engineering Department in the State of Himachal Pradesh. Shri Ashwani Kumar Kapoor happened to be an attesting witness to the will propounded by the defendants. The appellants' case is that Shri Ashwani Kumar Kapoor made a written request to his superior for grant of casual leave and also for permission to leave the station to enable him to appear in the Court. In response to the said request the Executive Engineer concerned by an endorsement dated 18th February 2006 declined the permission prayed for on the ground that H.P. State Assembly was in session. The appellants' case is that since the witness was a Government official and since his immediate officer had declined casual leave and leave to go out of station, the witness could not 4 be present for getting his deposition recorded on 21st February 2006 when the trial Court closed the evidence of the defendants-appellants.

5. Aggrieved by the said order, the appellants preferred C.M.P.M.O. No.54 of 2006 before the High Court of Himachal Pradesh at Shimla which was summarily rejected by the High Court without so much as recording any reason in support of the said order. The present appeal assails the correctness of the said order as already noticed above.

7. There is considerable merit in the submission made by Mr. Agrawala. Shri Ashwani Kumar Kapoor is an attesting witness to the Will which the defendants-appellants herein have set up in their defence. Non-examination of the said witness would, therefore, seriously affect their case. We cannot lose sight of the fact that the witness could not be produced not because of any deliberate neglect or inaction on the part of the appellants herein but on account of the refusal of casual and station leave prayed for by him. In the circumstances, interest of justice would be substantially served if a final opportunity is given to the appellants to produce the witness.

8. In the result this appeal is allowed, the order passed by the High Court and that passed by the trial Court are set aside and the matter remitted back to the trial court with the direction that the appellants shall be permitted to produce Shri Ashwani Kumar Kapoor as a witness in support of their case by issuing summons directly to the witness as 7 also through his immediate officer. Service of the summons shall be the responsibility of the appellants. We further direct that since the order closing the evidence of the appellants has been set aside by us, the appellants shall be free to examine any other witness in support of their case who is cited in the list already filed by them but who has not been produced so far. The production of any such witnesses shall, however, be the responsibility of the appellants. The parties to bear their own costs.