2025:HHC:38727 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.375 of 2022 Decided on 17th November 2025 Dwarka Dass (deceased) through his LRs …Petitioners Versus Vijay Kumar and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioners : Mr. Pawan Gautam, Advocate. For the respondents : Mr. Ajay Sharma, Senior Advocate, with Ms. Arshita Sharma, Advocate, for respondent No.1. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have prayed for the following relief:- “It is therefore most respectfully prayed that this present Petition may very kindly be allowed and the impugned order dated 11.07.2022 passed by the Learned Senior Civil Judge, Dharamshala, District Kangra, H.P. in Civil Suit No. 181 of 2012 titled as Vijay Kumar Versus Dwarka Dass and others and order dated 26.07.2022 passed in CMA No 264/2022 in civil suit, titled as Vijay Kumar Versus Dwarka Dass and others may kindly be set and the application moved by the petitioners /defendants Under Section 45,67& 73 Of Indian Evidence Act read with Section 151 CPC may kindly be allowed and Opportunity be granted to the petitioners/defendants to summon the witnesses to compare the admitted signatures of Late Shri Karam Chand with the signature shown to have been done by the deceased upon the cancellation deed of Will, in the interest of justice and fair play.” 2025:HHC:38727 2 2. The petitioners have challenged order dated 11.07.2022 as well as order dated 26.07.2022 passed by the learned Trial Court. Though, this Court deprecates the practice of filing a single petition assailing two different orders passed by the learned Trial Court, which are not even remotely inter connected, however, in the interest of justice, this Court is deciding this petition against both these orders. 3. The order passed by the learned Trial Court dated 11.07.2022 reads as under:- “Statement of DWs have been recorded. Learned counsel for defendant No.1 has stated that some documents have to be filed. However, Court found that it is a case of Will, which is on record. Copy of mutation and appeal therefrom, has nothing to do with the same, which are sought to be filed. Otherwise also, the same are on record and duly exhibited. Copy of mutation as also copy of jamabandi are also on record. Case has been pending since 2012. Therefore, evidence is closed. Be listed for arguments on 21.07.2022.” 4. The objection to the said order by the petitioners is that this order has been passed by the learned Court without affording appropriate opportunity to the petitioners to lead evidence. 5. Having heard learned counsel for the petitioners as also learned Senior Counsel for the private respondent and 2025:HHC:38727 3 having perused the record of the case, which is available; this Court is of the considered view that the contention of the petitioners merits rejection. 6. Record demonstrates that when the case was listed before the learned Trial Court on 20.06.2022, affidavits of two DWs were filed and the case was ordered to be listed on 30.06.2022 for tendering the same as well as cross- examination of said DWs. Learned Judge further recorded that as statement was made by learned counsel for the defendants that there was no other DW remaining to be examined. 7. In this backdrop, when the case was listed on 30.06.2022 as no DWs was present for cross-examination on the prayer of the defendants that is the present petitioners, last opportunity was granted for the cross-examination of said DW and the case was listed on 11.07.2022. The order that was passed on 11.07.2022 has already been quoted by me hereinabove. 8. In the light of the fact that counsel for the defendants had already made a statement in the Court on 30.06.2022 that no other DW was to be examined except the 2025:HHC:38727 4 two, whose affidavits are filed, obviously, there was no other DW, whose statement was to be recorded and, therefore, the contention of the petitioners that in terms of order dated 11.07.2022, the right of the defendants to lead evidence was abruptly closed is totally misconceived and, therefore, as this Court does not finds any merit in the said contention, the petition is dismissed qua the same. 9. Now, this Court will deal with the order that was subsequently passed by the Court on 26.07.2022 which is also under challenge. 10. As far as order dated 26.07.2022 is concerned, this is an order, in terms whereof, an application filed under Sections 45, 67 and 73 of the Indian Evidence Act by the present petitioners with the prayer that signature of late Karam Chand on Will dated 30.12.1991 be sent for expert opinion stands rejected. In terms of the record, this application was filed by the petitioners before the learned Trial Court mentioning therein that Karam Singh had executed a Will on 30.12.1991 and the same was not cancelled by him during his life time and, therefore, the application deserved to be allowed and signature 2025:HHC:38727 5 upon Will dated 30.12.1991 on cancellation deed dated 02.07.1994 were required to be sent to handwriting and document expert for its comparison in order to clear the fact that in fact Karam Chand had cancelled the Will dated 30.12.1991. 11. 11. Said application has been rejected by the learned Trial Court in terms of the impugned order by holding that an application filed under Section 65 of the Indian Evidence Act by the plaintiff to lead secondary evidence to prove cancellation deed dated 02.07.1994 was allowed by the Court and this order was not assailed by the petitioners before any Court and it had attained finality. It thereafter, observed that the petitioners could not rake up the issue that the plaintiff was wrongly allowed to lead secondary evidence qua document dated 02.07.1994. Qua the issue of comparison of signature, learned Court held that there were no admitted signatures for the reason that whereas the petitioner i.e., defendant No.1 was pleading that in Will dated 30.12.1991 admitted signatures were there, but no attesting witnesses were produced in the Court by the contesting defendant to prove the signatures of testator Karam 2025:HHC:38727 6 Chand on the said Will which was in favour of defendant Dwarka Dass. Learned Court thereafter went on to hold that whereas, plaintiff had produced in Court both attesting witnesses of the subsequent Will, however, defendant No.1 did not take any step for summoning DWs and at the last moment and on last opportunity, two DWs were produced who were not the attesting witnesses. On these basis, learned Court rejected the application. 12. Having heard learned counsel for the petitioners as also learned Senior Counsel for the respondent at length and having perused the original record of the suit file, this Court is of the considered view that finding arrived in the impugned order do not call for any interference. 13. This Court is making said observation for the reason that learned Senior Counsel for the respondent has referred to the written statement filed by defendant No.1 and submitted that in the entire written statement there is not even a whisper that cancellation deed of Will dated 02.07.1994 which was being relied upon by the plaintiff was either not executed by Karam Chand or was not a valid document. Learned Senior 2025:HHC:38727 7 Counsel drew the attention of the Court to Para-4 of the written statement, which contains the reply to Para-5 and 6 of the plaint on merit and the same reads as under:- “The contents of these paras are totally wrong, incorrect hence denied. The plaintiff is not entitled for any share in the property authenticated by late Shri Karam Chand. It is further submitted that during the life time of any one execution of Will and cancellation of the same does not give any right to plaintiff and the Will is effective and valid document of passing on the inheritance to the defendant No.1 and 2.” 14. Having perused the same, this Court is of the considered view that therein, there is an implied admission on the part of defendant No.1 qua the execution of the cancellation deed. It is again reiterated that there is no whisper in the entire written statement that the cancellation was not a valid document. In this view of the fact when there is no denial of the execution of the cancellation deed in the written statement by the defendant, the defendant cannot now be allowed to wriggle out of the pleadings and make submissions in the application, which are beyond the pleadings. 15. In this backdrop, if one peruses the application filed for sending the alleged admitted signature of Karam Chand for examination of an expert the same obviously demanded 2025:HHC:38727 8 rejection and this is exactly what has been done by the learned Trial Court. 16. Therefore, in this backdrop, as this Court does not see any reason to interfere with the order under challenge under Article 227 of the Constitution of India, the petition is dismissed. Record be returned back to the learned Court below. Parties are directed through counsel to appear before the learned Court below on 24.11.2025. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge November 17, 2025 (Vinod)