CR No. 3857 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 3857 of 2008 (O&M)
Date of decision: 30.4.2009
Pritam Singh and another
.. Petitioners
v.
Kuldeep Singh and another
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. K.P.S. Sandhu, Advocate for the petitioners.
Mr. J. S. Virk, Advocate for respondent No. 1.
..
Rajesh Bindal J.
Challenge in the present petition filed by the defendants is to the
order dated 7.5.2008, whereby the learned court below declined the request of the
petitioners for summoning of certain record, which was required to be confronted
to PW-Darshan Singh at the time of cross-examination.
Briefly, the facts are that respondent No. 1-plaintiff filed a suit for
declaration to the effect that he was owner in possession of the suit land on the
basis of a registered Will dated 30.7.1992 executed by Chanan Singh, whereas the
petitioners-defendants also projected a Will in their favour. As both the attesting
witnesses to the Will had expired, respondent No. 1-plaintiff produced one
witness- Darshan Singh, who claimed that he was present at the time when the will
was executed, but he chose not to sign the Will as a witness as there were other
persons available. As the Will was sought to be proved by producing a person
other than the attesting witness, the petitioners-defendants sought to challenge his
credibility by putting him certain record pertaining to his misdeeds, whereby he
was being prosecuted for forging the record. The prayer having not been allowed,
the petitioners are before this Court.
Learned counsel for the petitioners submitted that after the death of
attesting witnesses, respondent No.1-plaintiff sought to produce other witness to
prove the Will and to show that his testimony cannot be relied upon considering
his conduct, the petitioners sought to confront certain official record to him. The
prayer was initially allowed when his cross-examination was deferred on
CR No. 3857 of 2008 [2]
14.5.2007 for want of record. However, subsequently the prayer for summoning
the record was declined. The submission is that the same will materially affect the
case of the petitioners as in the absence of attesting witnesses, the court may not
ultimately place reliance on the statement of this witness to uphold the Will, where
seeing his past conduct, his testimony may not be reliable. Reference was made to
documents annexed with the petition as Annexures P. 4 to P.10 which, according
to him, were forged by the witness, where in spite of the fact that some persons
had died outside the village, but still their death certificates were attested stating
therein that they had died in the village. One pronote was shown to have been
executed by Gurbachan Kaur in favour of PW-Darshan Singh on 4.9.2003,
whereas she had in fact died on 7.1.2002. On the basis of this forged pronote,
Darshan Singh had even filed a suit for recovery against the legal representatives
of Gurbachan Kaur. On account of forgery having been committed by him, FIR
No. 23 was registered against him on 16.2.2007 under Sections 464, 465, 468, 471,
420 and 120-B IPC, in which challan has also been presented.
On the other hand, learned counsel for respondent No. 1-plaintiff
submitted that examination-in-chief of the concerned witness was recorded way
back on 19.1.2006. Thereafter, the matter was unnecessarily being delayed by the
petitioners. He further submitted that the observation of the learned court below is
that the record, which is sought to be summoned by the petitioners, has no
relevance with the subject matter of the suit. He further submitted that the learned
court below has already recorded a finding that PW-Darshan Singh, being not the
attesting witness to the Will, the Will was not going to be proved by his evidence.
In view of this finding, the cause of worry of the petitioners should have been over
and their apprehension was totally misconceived.
Having heard learned counsel for the parties, I find merit in the
submissions made by learned counsel for the petitioners. It is a case of peculiar
facts where per chance both the attesting witnesses of the Will had expired. As
huge property is involved, respondent No. 1-plaintiff is seeking to prove the same
by producing independent person claiming himself to be present at the time of
execution of the Will. Though the learned court below has observed in the
impugned order that the testimony of the person, who had not signed the Will as a
witness, will not be relevant to prove the Will, but still the same being at interim
stage may not be taken as such at the time of final determination of the lis between
the parties after the entire evidence is led, as the stand of the petitioners is that the
testimony of the witness, who is produced by the plaintiff to prove the Will, cannot
be relied upon on account of his conduct, which is evident from the various mis-
CR No. 3857 of 2008 [3]
deeds committed by him. The party cross-examining such a witness is certainly
entitled to confront him with the material showing his conduct and will have the
right to get the record summoned for the purpose.
In view of my above discussion, the impugned order passed by the
learned court below is set aside and the petitioners are permitted to summon the
record, which they wish to confront to PW-Darshan Singh.
The revision petition is disposed of in the manner indicated above.
(Rajesh Bindal)
Judge
30.4.2009
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