Deen Dayal Sharma vs State And Ors.
2002 Latest Caselaw 768 Del

JUDGMENT

Devinder Gupta, J.

1. The appeal is against the order passed on 13.3.2002 by the learned Single Judge dismissing two applications (I.As.2441 & 2442/2002) filed by the appellant. By the said order learned Single Judge declined to allow the appellant's prayer for setting aside the order of the Joint Registrar dated 19.12.2001 thereby permitting the appellant to summon the two witnesses.

2. Shri Makhija, learned counsel for the appellant contended that the that the learned Single Judge had on 16.10.2001 permitted the appellant to summon two witnesses through Court and since one of the witnesses was duly served for 19.12.2001 and was not present it was incumbent on the part of the Joint Registrar to have followed the procedure as laid down in Rule 10 or Order 16 CPC seeking presence of the witness and ought to have issued summonses to the other witness who was not served for the day. As such it was contended that by dismissing the two applications of the appellant learned Single Judge acted with material irregularity in exercise of his jurisdiction and there by shut down the defense of the appellant.

3. Learned counsel for respondent No.2 vehemently opposed the appeal contending that the order dated 27.11.2001 passed by Division Bench of this Court was peremptory in nature. In view of the said order of Division Bench the earlier order of the learned Single Judge stood superseded. It was the responsibility of the appellant to keep his witnesses ready and in attendance and rightly on failure to produce witnesses the Joint Registrar proceeded to close the evidence.

4. The appellant is the petitioner and has filed a petition for grant of probate of Will alleged to have been executed by his father Yad Ram Sharma. The petition is being contested by respondents 2to 4, hereinafter called the respondents. After the appellant had appeared as a witness despite number of opportunities remaining two witnesses were not being produced. Lastly an order was passed by the learned Single Judge on 16.10.2001 by which learned Single Judge directed summonses to be issued to the witnesses of the appellant through Court. This order was challenged by the respondents by filing FAO (OS) 490/2001. After notice the appeal was allowed by THE Division Bench on 27.11.2001. It was noticed that number of opportunities had been allowed to the appellant after 22.11.2000 to produce witnesses. Despite having undertaken to produce witnesses that remaining witnesses will be produced on his own responsibility, witnesses were not produced. Even thereafter case was adjourned from time to time and one more opportunity was allowed subject to payment of costs of Rs.5,000/- to produce evidence on his on responsibility but the appellant failed to produce evidence. Considering the conduct of the appellant the Division Bench proceeded to dispose of the appeal making it clear that since the case already stands adjourned to 19.12.2001 the appellant will examine the remaining witnesses who had remained to be examined by producing them before the Joint Registrar on19.12.2001 with the condition that in case witnesses are not produced the evidence shall stand closed. Liberty was reserved to the appellant to obtain summonses dusty for the witnesses and it was made clear that if witnesses are served and are not present the petition will not be adjourned for appellant's evidence and the same shall stand closed on the date already fixed, namely, 19.12.2001.

5. In view of the order of the Division Bench the appellant cannot take benefit of the order of the learned Single Judge dated 16.10.2001 since the same stood superseded by the order passed by Division Bench on 27.11.2001purport to which was that the witnesses had to be kept in attendance and even if they were served for the day and would not be present the appellant's evidence shall stand closed. In the light of the said order of the Division Bench it was not at all necessary for the Joint Registrar to have resorted to the procedure laid down in Rule 10 of Order 16 CPC. The Joint Registrar could not have defied the order of the Division Bench. It was also not possible for the learned Single Judge to have set aside the order of Joint Registrar and permitted the appellant to produce witnesses. In case the appellant had any grievance he could have challenged the order of the Division Bench dated 27.11.2001. The order of the learned Single Judge as such is not liable to interfered with.

6. The appeal accordingly is dismissed with costs.