Punjab-Haryana High Court
Pritam Singh And Another vs Kuldeep Singh And Another on 29 April, 2009
Author: Rajesh Bindal
Bench: Rajesh Bindal
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 mk