IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.63 of 2025 Decided on 07th August, 2025 Late Mr. Jagat Ram (deceased) through his LRs. …Petitioners Versus Sh. Mohan Singh and another …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioners: Mr. Sunil Kumar, Advocate. For the respondents: Mr. Deepak Gupta, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have prayed for the following reliefs:- i. “This Hon’ble Court may be pleased to set aside the impugned order dated 07.11.2024 passed by the learned Civil Judge (Senior Division), Court No.1, Shimla, H.P., in CMA No.3040 of 2024. ii. This Hon’ble Court may kindly allow to produce the crucial evidence by way of statements and issue an order directing the examination of three key witnesses i. the respondent/plaintiff, ii. the proforma-respondent and iii. The proforma respondent’s wife.” 2. The petitioners are aggrieved by the order passed by learned Civil Judge (Senior Division), Court No.1, Shimla, H.P., dated 07.11.2024 (Annexure P-1). In terms whereof, learned 2 Court has dismissed the applications filed by the petitioners under Order 18 Rule 17 of the Civil Procedure Code and under Section 90 of the Indian Evidence Act. The following reasons have been assigned by the learned Trial Court while dismissing the said applications:- “It is pertinent to point out that applicants/legal representatives of deceased defendant No. 2 filed four applications together for discharging the statement of the plaintiff and his examination afresh under Order 18 Rule 17 of the Code of Civil Procedure, under Order 2 Rule 2 read with Section 11, under Order 14 Rule 2 and Order 8 read with Section 151 of the Code of Civil Procedure to place on record the documents. Vide order dated 18.11.2023, out of aforesaid four applications, three applications were dismissed and only one application for placing on record the documents was allowed. Vide order dated 04.09.2024, the evidence of the LRS of defendant No. 2 was closed by the order of the Court. It was observed by the Court that the name of the witness namely Sh. Sohan Singh, the defendant No. 1 had been mentioned later on with pen writing. The Court further observed that the defendant No. 1 Sh. Sohan Singh has already been examined as DW-4 and he has also been cross-examined on behalf of defendant No. 2. Since the defendant No. 1 has already been cross-examined by the defendant No. 2, the legal representatives of deceased defendant No. 2 cannot be allowed to examine him afresh as the application has 3 not been filed for re-calling the witness. The application is not for additional evidence. The legal representatives of deceased defendant No. 2 cannot be allowed to re- examine the defendant No. 1 without cogent reasons. The matter pertains to the year 2012 and the evidence of the parties has already been concluded. Reference may be made to the judgment titled as 'K.K. Velusamy (2011) 11 SCC 275. So far as examination of plaintiff Sh. Mohan Singh is concerned, the application under Order 18 Rule 17 of the Code of Civil Procedure filed on behalf of the legal representatives of deceased defendant No. 2 has already been dismissed by the Court. After considering the record of this case, I am of the considered opinion that this application has been filed just to delay the proceedings. Therefore, it is hereby dismissed. Now, coming to the second application filed under Section 90 of the Indian Evidence Act. It has been averred by the legal representatives of deceased defendant No. 2 that the Will produced by the plaintiff in the present matter is a photocopy. The Will was also matter of adjudication before the learned Additional District Judge/Fast Track Court (FTC), Shimla. It has been stated that the learned ADJ already adjudicated the matter and by relying upon the provision of Section 65 and Section 90 of the Indian Evidence Act, allowed the appeal and rejected the Will. It has been submitted that in the present case also the plaintiff once again submitted a photocopy of the alleged Will which was previously contested by Smt. Yashoda Devi. Therefore, 4 inadmissible evidence cannot be considered and the exhibit put on the document is required to be removed. The plaintiff/non-applicant filed reply and resisted and contested the application. It has been submitted that he filed a certified copy of Will of Smt. Kundu Devi and same has been duly proved on record in accordance with the mandate of law. The plaintiff was granted right to prove the Will by leading secondary evidence and therefore, the application is not sustainable and is liable to be dismissed. After having heard learned counsel for the parties and having perused the record, it is clear that the plaintiff filed an application under Section 65 of the Evidence Act. This application was allowed vide order dated 12.08.2014 and the plaintiff was permitted to lead secondary evidence of Will in the shape of certified copy of the same obtained from the office of Sub-Registrar, Shimla. It was clarified that the observations made in the order were limited to dispose of the application only and shall have no bearing on the merits of the case. The plaintiff led secondary evidence and exhibited the Will. The Will has been exhibited after taking permission for leading secondary evidence. So far as its admissibility is concerned, it shall be decided on merits at the time of final adjudication. The exhibit already put cannot be removed. Therefore, this application is also dismissed. Applications stand disposed of. Be registered and tagged with main case file.” 5 3. Whereas, learned counsel for the petitioner vehemently argued that the learned Court below gravely erred in dismissing the said two applications and the impugned order is not sustainable in the eyes of law and the applications ought to have been allowed in the interest of justice, learned counsel for the respondents submitted that there is no infirmity in the impugned order and the findings of the applications was nothing but the abuse of the law and the present petition being devoid of any merit was liable to be rejected. 4. Having heard learned counsel for the parties and having perused the documents appended with the petition as well as the impugned order, this Court does not finds any infirmity therein. 5. It is not in dispute that the witnesses who were being intended to be recalled for cross-examination already stood cross-examined by the counsel engaged by the Predecessor-in- Interest of the petitioners herein. This position being clearly established on the record, the petitioners cannot state that the reasoning assigned by the learned Trial Court in dismissing the said application of theirs’ is perverse. Once, the witnesses stood 6 cross-examined by the counsel of the Predecessor-in-Interest of the petitioners, who entered into the footsteps of their Predecessor-in-Interest after the death of their Predecessor-in- Interest, they have to continue from the said stage and they do not have any independent right of seeking cross-examination of the witnesses already examined on behalf of their Predecessor- in-Interest afresh. 6. Similarly, the order that has been passed on the application filed under Section 90 of the Indian Evidence Act by the learned Trial Court also calls for no interference, because it could not be demonstrated during the course of arguments that the reasons spelled out therein were contrary to the record. 7. It is relevant to mention at this stage that this Court is exercise of its jurisdiction under Article 227 of the Constitution is not to act as an Appellate Court so as to re-appreciate the evidence. The duty of this Court is to ensure that in case there is any perversity in the order passed by the learned Trial Court, then, the same has to be interfered. In the present case, there is no perversity in the order passed by the learned Trial Court and the reasoning given therein is clearly based on the documents on 7 record as well as the record of the case. Learned Trial Court has rightly held that as the application filed under Section 65 of the Evidence Act by the plaintiff was allowed as far back as on 12.08.2024 and plaintiff was allowed to lead secondary evidence to prove the Will and thereafter plaintiff lead secondary evidence and Will was exhibited, same could not be ordered to be removed as an exhibited document as was being sought by the petitioners. 8. Therefore, in the light of the above observations, as this Court does not finds any merit in this petition, the same is dismissed. Pending miscellaneous applications, if any, also disposed of. (Ajay Mohan Goel) Judge August 07, 2025 (Vinod)