Augustine George Masih, J. - (1.) Prayer in this application is for condonation of delay of 612 days in re -filing the appeal. It has been stated in the application that the present appeal was filed within limitation. Certain objections were raised by the Registry and the Clerk of the counsel for applicants -appellants collected the same and by mistake wrongly placed the case file in different case because of which the same could not be traced. After great difficulty, the said file was traced and the appeal after removal of the objections, re -filed which has resulted in a delay of 612 days in re -filing the same. Counsel for the applicants -appellants states that the delay in re -filing the appeal was not deliberate or intentional nor any benefit has been derived because of the delay. He prays for the present application to be allowed. On considering the submissions made by learned counsel for the applicants -appellants and keeping in view of the affidavit which has been filed of the Clerk of the counsel, the present application is allowed. Delay of 612 days in re -filing the appeal stands condoned. Prayer in this application is for permission to place on record Annexures P -1 to P -3. Application is allowed subject to just exceptions. Annexure P -1 to P -3 are taken on record. Prayer in this application is for exemption from filing the certified copy of judgment and decree dated 23.02.2001 passed by the Court of learned Civil Judge (Junior Division), Phillaur; grounds of appeal before the learned District Judge, Jalandhar and Annexures P -1 and P -2 and for permission to file true typed copies of the same. Application is allowed subject to just exceptions. True typed copies of above said documents are taken on record. Challenge in this appeal is to the judgment and decree dated 23.02.2001 passed by the Civil Judge (Junior Division), Phillaur, whereby the suit filed by the appellants -plaintiffs for declaration with consequential relief of permanent injunction, has been dismissed, appeal against which preferred by the appellants -plaintiffs dismissed by the District Judge, Jalandhar, on 23.10.2012.
(2.) It is the contention of learned counsel for the appellants that after the passing of the decree dated 23.02.2001, an appeal was preferred which was allowed by order dated 23.09.2004 (Annexure P -1) and the matter was remanded to the trial Court to decide afresh by framing an additional issue i.e. 'whether the Will dated 15.04.1993 has been executed by Puran Singh? OPD'. This order was challenged by the respondent No. 14/defendant No. 14 -Kewal Singh before this Court by filing SAO No. 70 of 2004. The said appeal was allowed and the matter was directed to be decided by the District Judge, Jalandhar, by obtaining the report of the trial Court on the additional issue which was framed by the Lower Appellate Court. Before the trial Court, no evidence was led by the respondents -defendants in support of the said issue. The appellants -plaintiffs also chose not to lead any evidence. On the basis of the report which has been returned by the trial Court, the Lower Appellate Court has proceeded to decide the case on merits afresh.
(3.) Counsel for the appellants contends that in the light of the evidence which is on record, the learned Lower Appellate Court had earlier returned a finding and remanded the case to the trial Court for fresh decision on merits by framing an additional issue. He, therefore, contends that the said finding clearly establishes that there is nothing on the record which could be termed as evidence dealing with the validity/execution of the Will dated 15.04.1993. He, therefore, contends that the findings, as has now been recorded by the Court below with regard to the validity and due execution of the Will dated 15.04.1993 Exhibit DW2/A, cannot sustain. He contends that in the absence of any evidence led by the respondents -defendants with regard to the additional issue, the judgment itself is erroneous and deserves to be set aside. Counsel contends that the findings recorded with regard to suspicion and, therefore, discarding the registered Will dated 11.04.1988 by the Courts below, cannot sustain and the said finding also deserves to be set aside. He, accordingly, prays that the impugned judgments and decree deserve to be set aside and the suit of the appellants -plaintiffs decreed.;