Punjab-Haryana High Court
Karanvir Singh Aujla vs Harinder Kaur And Ors on 19 October, 2024
Neutral Citation No:=2024:PHHC:136840
CR-5588-2024 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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CR No.5588 of 2024 (O&M)
Reserved on:15.10.2024
Pronounced on : 19.10.2024
Karanvir Singh Aujla .....Pe33oner
Vs.
Harinder Kaur and others .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. R.K. Khosla, Senior Advocate with
Mr. Aman Sharma, Advocate for the pe oner.
Mr. Akshay Bhan, Senior Advocate with
Mr. Santosh Sharma, Mr. Divanshu Jain and
Mr. Abhinav Goel, Advocate for the respondents.
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DEEPAK GUPTA, J.
By way of this pe on filed under Ar cle 227 of the Cons tu on of India, pe oner prays for se,ng aside order dated 16.09.2024 (Annexure P.27) passed by learned Civil Judge (Senior Division), Chandigarh, whereby the objec ons dated 13.09.2024 (Annexure P.25) filed by the respondents objec ng to the examina on of the pe oner- plain ff as PW6, has been allowed. Challenge is further given to the order dated 17.09.2024 (Annexure P.29), whereby learned trial Court has closed the evidence of the plain ffs.
2.1 Ini ally, dispute started regarding the estate of Jagdarshan Singh, who on his death on 22.12.1998, le; behind his widow Smt. Harinder Kaur and two children, namely, Jasnesh Kaur and son Rajbir. Jasnesh Kaur (plain ff - performa respondent N: 4 herein), i.e. daughter of Jagdarshan Singh filed Civil Suit No.13179 of 2023 claiming 1/3rd share in the suit property on the basis of natural succession, against her mother Harinder Kaur [defendant N: 1 - respondent N: 1 herein (since deceased)] and brother Rajbir [defendant N: 2 - respondent N: 2 herein (since deceased)]. She Page No.1 out of 14 pages 1 of 14 ::: Downloaded on - 25-10-2024 04:06:08 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) further challenged Will dated 05.11.1990 purported to have been executed by Jagdarshan Singh and registered on 27.12.2010, in favour of Harinder Kaur and Rajbir.
2.2 Suit was being contested by both the defendants and necessary issues were framed but unfortunately, during pendency of the suit, both the defendants, i.e. mother as well as brother of plain ff Jasnesh Kaur expired. On account of their death, the estate of mother Smt. Harinder Kaur also came in dispute, inasmuch as legal heirs of Rajbir set up an unregistered Will dated 28.10.2020 of Smt. Harinder Kaur in favour of Rajbir, his wife Charn Kamal and son Teg Partap Singh. On the other hand, Karanvir (pe oner herein) and Zorawar (performa respondent N: 5 herein) sons of Jasnesh Kaur claimed a registered Will dated 04.03.2002 executed by Smt. Harinder Kaur in their favour in respect of one of the disputed shop.
2.3 In view of the Will dated 04.03.2002, trial Court allowed Karanvir and Zorawar to be impleaded as plain ff No.2 and 3. Legal representa ves of Rajbir were also brought on record.
2.4 Ini ally the issues were framed regarding the purported Will of Jagdarshan Singh and as defendants had propounded the said Will, therefore, onus was placed upon them so as to prove the legality and validity of that Will and the case was posted for the defendants' evidence first, instead of the plain ffs' evidence, as is usually done in the trial Court. However, a;er bringing on record the legal representa ves of defendants Smt. Harinder Kaur and Rajbir, two addi onal issues were framed on 31.03.2023 regarding both the Wills of Smt. Harinder Kaur. The onus was placed upon the plain ffs so as to prove the Will dated 04.03.2002 purported to have been executed by Harinder Kaur in their favour; whereas onus was placed upon the defendants/ legal heirs of Rajbir so as to prove the legality and validity of the Will dated 28.10.2020 purported to have been executed by Harinder Kaur in their favour.
2.5 Defendants had closed their evidence on 16.04.2024. Plain ffs started their evidence on 16.08.2024 and a;er cross-examina on of the Page No.2 out of 14 pages 2 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) plain ff N: Smt Jasnesh Kaur as PW1 conducted on as many as six dates, the same was ul mately concluded on 05.09.2024. Some of other witnesses were also examined by the plain ffs.
2.6 On 12.09.2024, a;er examining PW4 and PW5, affidavit by newly impleaded plain ff No.2 - Karanvir Singh Aujla (pe oner herein) was filed as his examina on-in-chief, as he wanted to appear as his own witness as PW6. The same was objected to by the defendants. It was claimed that plain ff- Smt. Jasnesh Kaur had already appeared as PW1 and during her en re tes mony, Karanvir was present. It was never informed to the Court that plain ff - Karanvir also wanted to appear as the witness. Apart from this, in the list of witnesses provided to the Court, the name of pe oner - Karanvir was not men oned and as such, he could not be allowed to be examined.
2.7 Learned trial Court by way of the impugned order dated 16.09.2024 accepted the objec ons of the defendants and by allowing the same, rejected the affidavit of plain ff- Karanvir tendered as examina on- in-chief. Therea;er, Court also closed the evidence of the plain ffs vide order 17.09.2024.
3. Assailing the afore-said orders, it is contended by learned counsel for the pe oner -plain ff that when a party is to examine himself as a witness, it is not required to men on his name in the list of witnesses and that there was no jus fiable reason to reject his affidavit or not to allow him to appear as his own witness. Learned counsel refers to Order 16 and Rule 1 and Rule 1A CPC and relies upon Lalitha J. Rai Vs. Aithappa Rai, 1996(1) RRR 241; M/s Preet Cold Storage and Ice Factory, Khamano Mandi, Ludhiana and others Vs. M/s United Commercial Bank, Sangol Ludhiana and another, 1989 (1) PLR 180; Mandir Shri Hanuman Mur0 and another Vs. Collector Mahoday Da0a and another , 2016 (1) MPLJ 72; and Mange Ram Vs. Brij Mohan and others, 1983 (3) SCR 525.
4. On the other hand, the conten on of learned Senior Counsel for the respondents- defendants is that it is mandatory for a party to appear Page No.3 out of 14 pages 3 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) in the witness box first of all and only therea;er, he can examine other witnesses. Learned senior counsel contends that plain ff - Smt. Jasnesh Kaur having already appeared in the witness box as PW1 and having already examined other witnesses, the only purpose of examining pe oner- Karanvir was to fill in the lacunae le; in the tes mony of PW1 and therefore, the affidavit of pe oner Karanvir has been rightly rejected. Learned Senior Counsel has referred to Order 18 Rule 3A of the CPC and has relied upon Jasbir Singh Vs. Jaspal Singh, 2015 (2) Law Herald 1671; and Mrs. Anju Toshniwal and others Vs. Expat Proper0es India Limited, Writ Pe00on 3685 of 201, decided on 23.08.2019 [Bombay HC]
5. This Court has considered submissions of both the sides and has appraised the record carefully.
6.1 Order 16 Rule 1 and Rule 1A CPC read as under:-
"1. List of witnesses and summons to witnesses:
(1) On or before such date as the Court may appoint, and not later than fi;een days a;er the date on which the issues are seKled, the par es shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their aKendance in Court.
(2) A party desirous of obtaining any summons for the aKendance of any person shall file in Court an applica on sta ng therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to men on the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the par es on an applica on to the Court or to such officer as may be appointed by the Court in this behalf within five days of presen ng the list of witnesses under sub-rule (1).
Page No.4 out of 14 pages 4 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) 1A. Produc0on of witnesses without summons:
Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents."
6.2 On the other hand, Rule 3A of Order 18 CPC, reads as under:
"3A. Party to appear before other witnesses:
Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage."
7. Interpre ng Order 16 Rule 1 & 1A CPC in Lalitha J. Rai Vs. Aithappa Rai (supra), Hon'ble Supreme Court has held as under:-
"2. Order 16 Rules 1 and 1(A) adumbrate that the witness at the trial court are to be produced for examina on by the par es by their filing the list, and omission thereon prohibits them to avail the assistance of the court to secure their aKendance to give evidence or to produce documents on their behalf. It is true that the legislature amended Order 16 Rule 1 and added rule 1(A) to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. Thereby, it envisages that on or before the date fixed by the court for seKlement of issues and not later than 15 days a;er the date on which issues were seKled, the par es are to file the list of such witnesses whom they propose to call either to give evidence or to produce documents and they are required to obtain summons to such witnesses for their aKendance in the court. On their failure to do the same, Rule 1(A) says that they may without assistance of the court bring witnesses to give evidence or to produce documents. In other words, if they fail to obtain the summons through court for a@endance of witnesses they are at liberty to have the witnesses brought without the assistance of the Court.
3. It would, thus, be seen that the legislature did not put a total prohibi on on the party to produce the witnesses or the produc on of the documents for proof of the respec ve case. Nonetheless, when they seek Page No.5 out of 14 pages 5 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) the assistance of the Court, they are enjoined to give reasons as to why they have not filed the applica on within the me prescribed under Rule 1 of Order 16............"
8. In Mange Ram Vs. Brij Mohan and others (supra), Hon'ble Supreme Court, interpreted the abovesaid provisions along with Rule 12A and also in the light of provisions applicable to the Elec on Pe on and held as under:-
"9. If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obliga on to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose aKendance the party needs the assistance of the Court. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of order XVI. The consequence is that where the witness summoned either to give evidence or to produce documents fails to aKend or to produce the documents in compliance with such summons, the Court on being sa sfied of the service as provided therein and is further sa sfied that the person has without lawful excuse failed to honour the summons, the Court may issue is a proclama on requiring him to aKend to give evidence or to produce the document at a me and place to be named therein; and a copy of such proclama on shall be affixed in the manner therein provided. Simultaneously, the Court may, in its discre on, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the aKachment of his property for such amount as it thinks fit. Even if therea;er the witness fails to appear, the Court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condi on in life and all the circumstances of the case, and may order his property, or any part, thereof, to be aKached and sold as provided in Rule 12 of order XVI........ "
9. In M/s Preet Cold Storage and Ice Factory, Khamano Mandi, Ludhiana Vs. M/s United Commercial Bank, Sangol Ludhiana (supra), it Page No.6 out of 14 pages 6 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) has been held by this Court that when witnesses are present in the Court, though they were not cited in the list ini ally filed by pe oners, court cannot disallow their produc on as witnesses, par cularly when they were present on the date when the evidence of the pe oners was to be recorded.
10. In Mandir Shri Hanuman Mur0 Vs. Collector Mahoday Da0a (supra), applica on for summoning of a witness was rejected on the ground that his name was not men oned in the list of witnesses. It was held by Madhya Pradesh High Court that a witness can be brought by a party, even if no list is filed at earlier point of me or his name is not given in the list. It was further held that Court below erred in examining maKer with a hyper technical point of view and that the Court cannot be jus fied in rejec ng the applica on. In paras No.10 and 11, High Court has held as under:-
"10. In view of aforesaid legal posi on, there is no difficulty to hold that court below has erred in examining the maKer with a hyper technical point of view. As per said judgments, a witness can be brought by party even if no list is filed earlier or name of said witness does not figure in the said list. It needs to be remembered that procedural law is made to advance the cause of jus ce. The same is not made to strangulate the li gant on hyper technical ground. This Court considered this aspect in 2014 (3) MPLJ (Dataram Singh and Ors. Vs. Brindawan Singh and Ors.) and opined as under :-
"This is seKled in law that all the rules of procedure are the handmaid of jus ce. The Apex Court in AIR 1955 SC 425 (Sangram Singh v. Elec0on Tribunal, Kotah) opined that A code of procedure must be regarded as such. It is "procedure", something designed to facilitate jus ce and further its ends: not a penal enactment for punishment and penal es; not a thing designed to trip people up. Too technical a construc on of sec ons that leaves no room for reasonable elas city of interpreta on should therefore be guarded against. The Apex Court in (1975 (1) SCC 774 (Sushil Kumar Sen v. State of Bihar) opined that the mortality of jus ce at the hands of law troubles a judge's conscience and points an angry interroga on Page No.7 out of 14 pages 7 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) at the law reformer. The processual law so dominates in certain systems as to overpower substan ve rights and substan al jus ce. The humanist rule that procedure should be the handmaid, not the mistress, of legal jus ce compels considera on of ves ng a residuary power in judges to act ex debito jus ae where the tragic sequel otherwise would be wholly inequitable. Jus ce is the goal of jurisprudence - processual, as much as substan ve. In (1976) 1 SCC 719 (State of Punjab v. Shamlal Murari), the Apex Court held that processual law is not to be a tyrant but a servant, not an obstruc on but an aid to jus ce. Procedural prescrip ons are the handmaid and not the mistress, a lubricant, not a resistant in the administra on of jus ce. In (1984) 3 SCC 46 (Ghanshyam Dass v. Dominion of India) the Apex Court reiterated the need for interpre ng a part of the adjec ve law dealing with procedure alone in such a manner as to sub-serve and advance the cause of jus ce rather than to defeat it as all the laws of procedure are based on this principle. In (2005) 4 SCC 480 (Kailash vs. Nanhku and others) the Apex Court held that the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situa ons in the ends of jus ce."
11. As analyzed above, the Court below was not jus fied in disallowing the applica on preferred under Order 16 Rule 1 C.P.C. More so when related applica ons preferred under Order 7 Rule 14(3) C.P.C and under Sec on 65 of the Evidence Act were allowed. The impugned order of the court below runs contrary to seKled legal posi on. Consequently, the impugned order dated 12.05.2014 to the extent applica on preferred under Order 16 Rule 1 C.P.C was disallowed, is set aside. The applica on stands allowed. The Court below is directed to proceed from that stage."
11. Thus, as per the legal posi on as explained above, list of witnesses alongwith the gist of the evidence of each such witness has to be carried out in respect of only those witnesses, for procuring whose aKendance the party needs the assistance of the Court. If a party fails to obtain the summons through court for aKendance of witnesses, it is at Page No.8 out of 14 pages 8 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) liberty to have the witnesses brought without the assistance of the Court. Such a witness, who has been brought by a party, cannot be disallowed to be examined for the reason that his name was not men oned in the list earlier provided. A hyper technical approach cannot be adopted by the court in this regard, as "procedure" is handmaid of jus ce, meant to facilitate jus ce and further its ends. Procedural law cannot taken as the mistress in such a way that its hyper technical adop on will act as a resistant in the administra on of jus ce.
12. However, in the light of Order 18 Rule 3A CPC, it has been observed by a coordinate bench of this court in Jasbir Singh Vs. Jaspal Singh (supra) as under:-
"5................ Although under Order 18 Rule 3A of the Code requires the par es to be examined first before calling the witnesses, it is simply a prac ce that is not followed in many of the subordinate courts in Punjab and Haryana. The provision requiring the par es to be examined first was inserted by Act 104 of 1976 for a salutary purpose of bring the asser on of the respec ve par es first before other witnesses could be brought and to ensure that a party does not cover up every lacuna in evidence of what are brought through witnesses in cross- examina on. It is me that discipline at the trial and the statutory provision regarding Rule 3A of the Code is strictly followed. Even if prior permission is not taken before the commencement of trial, it shall be sought at least at the me before the party is examined. Even this is not being done in our courts. The par es assume that a witness can be examined in any order and the par es can also bring their own versions at any me they wish. Any breach of this rule will be viewed seriously and may result in eschewing the evidence of the par es, if no permission is taken under Order 18 Rule 3A of the Code to examine the party a;er examina on of witnesses. I would issue this direc ve to apply in all future cases, so that it does not cause any serious disloca on and the par es and more par cularly, the Bar which aids and advises the li gants is sensi ve to the statutory provision under Order 18 Rule 3A of the Code and the consequences of not complying with the mandate. If, in future, any party does not offer his or her evidence first and Page No.9 out of 14 pages 9 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) brings third party witnesses first and later offers to tender evidence without taking prior permission, the opposite party may oppose such evidence before the party's evidence is tendered. The trial court shall not permit evidence to be given unless, it sets out reason in wri ng why such permission is being given. In Gurmail Chand Vs. Ashok Verma 2004 (3) RCR (Civil) 164, this court had held that if witnesses other than party was examined and party is examined later, no objec on could be taken. In my respecUul view, it will amount to pu,ng the cart before the horse. Objec ons could be righUully taken only when the party shows up to tender evidence and not when third party witness is given."
13.1 Bombay High Court in Mrs. Anju Toshniwal (supra) a;er quo ng Rule 3A of Order 18 CPC held as under:-
"12. Thus, a party examining himself before other witnesses are examined is a rule and a party examining himself a;er the other witnesses are examined, is an excep on. An excep on can be made only for valid reasons.
13. In the case of Hari Shrawan Sutar Vs. Ramdas Tukaram Pa0l, reported in 1985 Mh. L.J. page 197, this Court has held thus:
"4. The provisions of Rule 3-A of Order 18 of the Code were inserted by Amending Act No. 104 of 1976 to the Code. That lays down a Rule of law with regard to the order of witnesses to be examined in the Court. It applied to both the plain ff as well as the defendant. In cases where a party, either plain ff or defendant, wishes to appear as a witness, the provisions of this rule require that such a party would appear for giving evidence before any other witness is examined. The Rule has been couched in mandatory terms and would, ordinarily, govern the maKer of tendering evidence. When the rule is required to be departed from, the Court has to record the reasons and permit such a party to be kept back for the examina on as a witness. The reasons in such maKer may be various, including the non-availability of the plain ff. Though the provisions of Rule 3- A of Order 18 of the Code are salutary and intended to be applied as such so as to achieve the object thereof, the Rule itself confers Page No.10 out of 14 pages 10 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) jurisdic on upon to Court to permit such a party to appear and examine himself at a later stage. The purpose of the Rule appears to be to have the evidence of the party first. It is the party who can unfold the case. Such unfolding by other evidence should follow a;er the party is examined. If party be the witness, the amended provision confers primacy upon it and enacts a priority in that regard. Ordinarily, the same will have to be followed."
Thus, the provision of Order 18 Rule 3A of the CPC lays down nominal rule that the party as a witness must offer himself as a witness before any other witness is examined. This salutary rule can be departed by leave of the Court for which reasons are required to be recorded. Once such reasoned order is made, the examina on of such a party at a later stage would be quite regular and in keeping with the rule. It follows from this that but for such leave, the party will not be free to examine, itself as a witness at a later stage."
13.2 In the above case, Bombay High Court had considered as to whether the plain ff Company had deliberately withheld Mr. Gowda, the Director of the Company to be examined as a witness and whether it was with a view of fill up the lacunae in the evidence of Mr. Rao earlier examined. A;er examining the circumstances, High Court held as under:-
"19. It is seKled law that, whereby the party deliberately withheld himself to be examined as a witness at a later stage a;er examina on of other witnesses, with a view to fill up the lacuna in the evidence. It is a relevant considera on where applica on is filed seeking permission to examine him at a later stage.
20. Besides, the learned Judge ought to have examined the evidence of Mr. Rao in its en rety to ascertain whether there was an acceptable reason for not examining Mr. Gowda as a witness of the Company before examining Mr. Rao. This exercise was necessary or otherwise it would en rely frustrate the object for introducing the amendment under Order 18 Rule 3A CPC which was introduced pursuant to the recommenda ons of the 54th Report of the Law Commission.
21. The obvious purpose of the rule is to do away with the prac ce which Page No.11 out of 14 pages 11 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) had grown in the Indian Courts of examining other witnesses first and entering in the witness box to fill up the lacuna later which might have been le; or to undo the damage which might have been caused by certain admissions which might have been made by other witnesses which affects the opposite party. It is a normal rule of apprecia on of evidence that the substan ve evidence in each case is of the party as itself and other witnesses most of the me are treated as witness corrobora ng the substan ve evidence."
14. On appraisal of the afore-said authori es, it become clear that though as a normal rule, party must examine himself and only therea;er, the other witnesses should be examined. Party appearing a;er the examina on of other witnesses is an excep on, which can be made only for valid reasons. The use of the word "shall" in Order 3A makes it mandatory that a party should appear himself first as his witness.
15. However, at the same me, the afore-said Rule is required to be interpreted harmoniously along with Order 16 Rule 1 and 1A CPC, as per which when a party want to examine any person without seeking assistance of the court to procure his presence and the witness is present, he should be allowed to be examined by the Court and court cannot refuse to examine him. If a party wants to examine himself a;er the examina on of other witnesses, the court will frown upon it and before permi,ng to examine him, will see that there exists valid reason for doing so. Even oral request of a party may be considered for this purpose.
16. In the present case, pe oner - Karanvir, who wanted to examine himself as PW6, is himself one of the plain ffs in this case. Apart from this, it is very important to no ce that PW1 Smt. Jasnesh Kaur, who was the original plain ff in the case, was required to produce evidence in rebuKal to the legality and validity of the Will of Jagdarshan Singh, which was propounded by defendants. On the other hand, plain ffs No.2 and 3 i.e. pe oner - Karanvir and his brother, were required to produce evidence regarding the legality and validity of the Will of 4.3.2002 of Smt. Harinder Kaur, which is purported to have been executed in their favour.
Page No.12 out of 14 pages 12 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) They are also required to rebut the evidence of the defendants in respect of the Will dated 28.10.2020 of Smt. Harinder Kaur as relied by them. Thus, rights of plain ffs No.2 and 3 i.e. pe oner and his brother are quite independent to that of the rights of plain ff No.1- Jasnesh Kaur. Plain ff No.1- Jasnesh Kaur will have the right in the estate of her mother Smt. Harinder Kaur, if plain ffs No.2 and 3 or the defendants are unable to prove any of the Wills of 4.3.2002 and 28.10.2020 of Smt. Harinder Kaur.
17. In the afore-said facts and circumstances, it will be quite injudicious, in case pe oner is not allowed to appear as his own witness in order to prove his case. More importantly, soon a;er the examina on of PW5, the plain ff - pe oner Karanveer was present in the Court and had tendered his evidence on 12.06.2024 to examine himself as a witness.
18. As far as the objec on to the effect that pe oner was present, when PW1 was being examined, it is no ced that at no point of me any objec on was raised on behalf of the defendants regarding the presence of the pe oner during the recording of tes mony of PW1. The conten on that it was not brought to the no ce of the Court or it was not disclosed to the defendants that Karanvir also wanted to appear as witness, is not found to contain any merit. In case, defendants apprehended that pe oner could appear as his own witness, they should have raised objec on in this regard in the beginning itself. Similarly, since pe oner himself is plain ff of the case, it is immaterial, in case his name was not men oned in the list of witnesses already provided to the Court.
19. In view of the afore-said discussion, the impugned orders dated 16.09.2024 (Annexure P.27); and dated 17.09.2024 (Annexure P.29) passed by the Courts below, declining to examining the pe oner as his own witness, and later on closing the evidence of the plain ffs, cannot be sustained. Both these orders are hereby set aside. Present pe on is allowed.
20. The Trial Court is hereby directed to permit the pe oner -
Page No.13 out of 14 pages 13 of 14 ::: Downloaded on - 25-10-2024 04:06:09 ::: Neutral Citation No:=2024:PHHC:136840 CR-5588-2024 (O&M) plain ff No.2 to examine himself as his own witness, for which purpose, one opportunity shall be provided. However, as the maKer has become quite old, the Trial Court will make sincere efforts to dispose of the maKer expedi ously.
October 19, 2024 (DEEPAK GUPTA)
Renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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