L. N. MITTAL - (1.) CM No.9515-CII of 2012 For reasons mentioned in the application, which is accompanied by affidavit, delay of 99 days in re-filing the appeal is condoned. CM No.9516-CII of 2012 Allowed as prayed for. Main Case
(2.) DEFENDANT Malkiat Kaur @ Gurdeep Kaur has filed this appeal. Respondent/plaintiffs filed suit against defendant-appellant. The plaintiffs in the suit challenged transfer deed and Will allegedly executed by Darshan Singh. SAO NO.24 OF 2012 (O&M) -2- Learned Civil Judge (Junior Division), Talwandi Sabo vide judgment and decree dated 08.02.2010 dismissed the plaintiffs' suit. In first appeal preferred by the plaintiffs, learned Additional District Judge, Bathinda vide judgment dated 24.08.2011 set aside the judgment and decree of the trial Court and remanded the suit to trial Court. The plaintiffs in first appeal moved application for additional evidence alleging that they were not allowed to lead rebuttal evidence by the trial Court to disprove the Will set up by the defendant. The lower Appellate Court allowed the said application of plaintiffs for additional evidence and remanded the suit to trial Court with direction to afford reasonable opportunity to the plaintiffs to lead rebuttal evidence on the issue of Will. Feeling aggrieved, defendant has filed this appeal. I have heard learned counsel for the appellant and perused the case file.
(3.) LEARNED counsel for the appellant referred to Order 18 Rule 3 of the Code of Civil Procedure (in short, CPC) and contended that plaintiffs in their affirmative evidence had led rebuttal evidence also regarding testamentary capacity of the testator and, therefore, they could not lead evidence in rebuttal on the issue of Will. Reliance in support of this contention has been placed on Division Bench judgment of this Court in case of Smt. Jaswant Kaur and another versus Devinder Singh and others, 1983(2) RCR (Rent), 57. It was also contended that evidence of the plaintiffs was closed by order of the trial Court dated 06.03.2009 and the said order was not challenged by the plaintiffs and therefore, they have no right to lead evidence in rebuttal.;