Dr. Bharat Bhushan Parsoon, J. - (1.) VIDE impugned order (Annexure P -6) allowing application under Order XLI Rule 27 CPC, Ashwani Kumar, attesting witness of the Will dated 1.4.1999 was permitted to be examined, the court below came to the conclusion that examination of witness Ashwani Kumar was even otherwise required for advancing the cause of justice and ends of justice warranted that he should be examined. In short, the court felt that this evidence is essential for just decision of the case.
(2.) CHALLENGING this order in the revision petition, plea of the petitioners is that when this witness had been given up by the respondents -defendants themselves, they could not have been allowed to examine this witness. It is claimed that the respondents -defendants wanted to fill up lacuna in their case. Plea of the respondents, on the other hand, is that the court had nowhere denied examination of Ashwani Kumar and it was rather the volitional act of the respondents -defendants that they before the lower court had given up witness Ashwani Kumar on the plea that he was won over by the opponents. It is claimed that since proving of a Will requires at least one attesting witness to be examined, the respondents -defendants are even running a risk that his testimony may go against them, he being a witness won over, by the opponents but since for proving the Will, his examination is necessary, the Appellate Court had rightly allowed it for just decision of the case.
(3.) COUNSEL for the petitioners -plaintiffs citing Sohan Singh and another Versus Amrik Singh and others : 2005(2) RCR (Civil) 325 (P & H) has urged that if a witness once had been given up, he cannot be allowed to be examined during the course of second appeal.;