Suneet Kumar, J. - (1.) Petitioner/Defendant is assailing the order dated 20 February 2017 passed by District Judge, Hapur, in Civil Revision No. 50/2016, arising from an order dated 29 August 2016 passed by the trail Court, whereby, application for examining the husband of the respondent/plaintiff has been allowed. The facts, briefly stated, is that the respondent/plaintiff instituted a suit for permanent injunction in respect of the suit property alleged to have been purchased by a registered sale-deed. Upon framing issues, rival parties led their evidence. The daughter of the respondent appeared as a witness on behalf of the respondents. Thereafter, an application (81Ga), bringing certified copy of the sale-deed, power of attorney and other documents was moved. Another application (83Ga) was moved by the respondent for examining her husband, in view of Section 120 of the Indian Evidence Act, 1872 (Evidence Act). The applications were contested by the petitioner, however, the trial court allowed the application; in revision, the order of the trial court was affirmed. The orders and under challenge.
(2.) Learned counsel for the petitioner would confine his argument to application (83Ga) contending that at the final stage of argument an application to examine the husband of the respondent could not have been allowed. The application was filed to fill up the lacune in the evidence, therefore, was not maintainable.
(3.) The court below in the impugned order would note that the case set up by the respondent/plaintiff was that the property was purchased by a deed of conveyance (sale-deed) which was disputed by the contesting petitioner contending that it was a forged document. Two witnesses and her daughter was examined on behalf of the respondents, thereafter, it was realized that in view of Section 120, the evidence of the daughter would not be admissible in law to prove the sale-deed, therefore, an application was moved that the husband of the respondent be summoned and examined. The court below allowed the application accepting the contention of the respondent that the husband could not be produced as he was not well and in any case since the husband is alive he would be the material witness in the case and not the daughter.;