Jasbir Singh And Ors vs Gursharan Kaur And Ors
2022 Latest Caselaw 14909 P&H

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      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                    RSA No.4602 of 2017 (O&M)
                 Date of decision: 22nd November, 2022

Jasbir Singh & others
                                                             ... Appellants
                                    Versus
Gursharan Kaur & others
                                                            ... Respondents

CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present:    Mr. Rakesh Gupta, Advocate for the appellants.
            Mr. S.S. Salar, Advocate
            for the caveators/respondents No.1 to 5.

MANJARI NEHRU KAUL, J.

Suit for joint possession, declaration and permanent

injunction filed by the respondents was decreed with costs by the trial

Court vide judgment and decree dated 19.11.2014 and which findings

of the trial Court were affirmed in appeal by the lower appellate Court

vide judgment and decree dated 17.05.2017. Aggrieved against the

same, the defendants are now in appeal before this Court.

Learned counsel for the appellants submits that both the

Courts below gravely erred in discarding the Will dated 02.08.2004

executed by Gurtar Singh, without appreciating the evidence on record

in the right perspective.

He submits that to controvert the report of the expert PW-2

and to prove the genuineness and due execution of the aforesaid Will

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dated 02.08.2004, the appellants had tendered report of an handwriting

expert, however, the said witness was not cross-examined by the

respondents and on their request, the case was adjourned by the trial

Court. The said handwriting expert was then bound down by the Court,

however, since the said expert was busy before another Court on the

said date, he was unable to appear before the trial Court when the case

was called for his cross-examination. Resultantly, the trial Court closed

the evidence of the appellants by order.

Learned counsel has vehemently urged that it is settled law

that if a witness, who has been bound down, fails to appear before the

Court, it would then be for the Court to ensure his presence by issuance

of warrants, which however was erroneously not done in the instant

case. Learned counsel asserted that in the aforementioned facts and

circumstances of the case, the trial Court was not at all justified in

closing the evidence of the appellants by order. Learned counsel further

argued that even the lower appellate Court failed to appreciate the said

fact and dismissed the appeal preferred by the appellants.

Learned counsel for the appellants has lastly contended that

since the appellants were not given due opportunity to prove their case

by both the Courts below, it had caused a grave prejudice to them.

Therefore, the matter deserved to be remanded back for decision afresh.

In support, learned counsel has placed reliance upon 'Bhagwan Das

and another vs. Firm Banwari Lal-Ram Niwas' 1979(2) RentLR

276.

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Learned counsel for the respondents has not been able to

controvert the submissions made by the counsel opposite with respect

to the expert witness though having been bound down by the trial Court

for his cross-examination, was unable to appear, and to secure his

presence no warrants were issued nor any efforts made by the trial

Court in the said regard. Learned counsel does not oppose the prayer

made by the counsel opposite for remanding the matter back to the

Court below.

I have heard learned counsel for the parties and perused the

relevant material on record.

This Court finds force in the submissions made by the

learned counsel for the appellants that since the expert witness was

bound down by the trial Court, it was imperative upon the trial Court to

make efforts for securing his presence and the trial Court therefore,

erred in straightaway going ahead and closing the evidence of the

appellants by order.

A perusal of the record reveals that the expert witness

examined by the appellants was bound down by the trial Court for his

cross-examination, however, on the next date of hearing due to his

absence, the evidence of the appellants was closed by order, by the trial

Court.

It would be relevant to observe that once a witness has been

bound down, the Courts must make efforts to secure his presence and

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should refrain from resorting to closure of evidence of the party

concerned, more so, when no fault can be attributed on its part.

In view of the aforesaid, this Court is of the opinion that the

appellants were not given due opportunity to prove their case. The

matter in issue in the suit pertains to the execution of a Will, therefore,

the evidence of the expert witness to prove his report, which stands

tendered by the appellants, would without a doubt, have a bearing on

the merits of the case. Hence, in the facts and circumstances as

enumerated hereinabove coupled with the fact that learned counsel for

the respondents has not opposed the prayer of the learned counsel for

the appellants, the judgments and decrees passed by the Courts below

are set aside and the matter is remanded back to the trial Court for its

decision afresh. The trial Court shall allow the expert witness

(handwriting expert) summoned by the appellants to be cross-examined

by the respondents/plaintiffs and thereafter proceed to decide the suit in

accordance with law after considering all the relevant material on

record. The parties are directed to appear before the trial Court on

10.01.2023 and the trial Court shall make earnest efforts to decide the

suit expeditiously, in accordance with law.

The instant appeal stands disposed of accordingly.

                                         (MANJARI NEHRU KAUL)
                                                JUDGE
November 22, 2022
rps
           Whether speaking/reasoned                   Yes/No
           Whether reportable                          Yes/No

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