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2025 DAILYLAW 3536 (HP)

Sita Devi v. Keshav Ram alias Kishan

2025-09-09

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the order passed by the learned Trial Court dated 22.06.2022, in terms whereof, an application filed by the petitioner under Order 18, Rule 17, read with Section 151 of the Civil Procedure Code, to recall and re-examine witness Chuni Lal, has been dismissed. 2. Learned Counsel for the petitioner has submitted that the Counsel engaged by the party unfortunately was suffering from ill health and on account thereof, on the date concerned, the witness was examined by a junior Counsel and because said junior Counsel was not properly briefed, therefore, he could not put appropriate questions to the witness and further as the witness had turned hostile, therefore, there was a need to conduct his cross examination but this was also not done by the Counsel who had in fact appeared vice to the original Counsel. He thus submitted that as on account of the negligence on the part of the Counsel, the petitioner was being denied justice, it was in these circumstances that the application was filed and this extremely important aspect of the matter has been ignored by learned Trial Court while dismissing the application. 3. On the other hand, learned Senior Counsel appearing for the respondent referred to the order under challenge and submitted that the witness was not examined by any vice Counsel as alleged. The witness was examined by a duly engaged Counsel by the party, who had duly filed his power of attorney on behalf of said party and this was evident from the impugned order wherein it was observed by the learned Judge. Learned Senior Counsel has further submitted that the tone and tenor of the application also demonstrated that the filing of the application was nothing but an attempt to fill up the lacunae in the case. He took the Court through the contents of the application as well as the reply and submitted that in the backdrop of the averments made in the application as well as response thereto, the findings returned by the learned Trial Court in the application, being findings returned on the basis of record, same call for no interference by this Court under Article 227 of the Constitution of India. 4. 4. I have heard learned Counsel for the petitioner as well as learned Senior Counsel for the respondent and have also gone through the order under challenge. 5. In terms of the impugned order, the application filed under Order 18, Rule 17 of the Civil Procedure Code read with Section 151 thereof has been rejected by the learned Trial Court by returning the following findings:- “7. In the application in hand, the applicant has submitted that the original counsel was ill at the time of recording the detendant's evidence and the Jr. Counsel has examined the witnesses and he failed to declared hostile the witness namely Chuni Lal when he denied that he was the scribe of the Will in question. In fact, he inadvertently could not declared him as hostile. From the perusal of the case file and zimini order dated 13.06.2019 shows that the Id. Advocate Sh. Amit Sharma was present in the Court who was representing the defendant in this case. This zimini order nowhere shows that Power of Attorney dated 14.09.2015 filed on behalf of the defendant by their counsels also not shows that Sh. Amit Sharma Id. Advocate is the vice counsel for the applicant. In fact, defendant herself authorised Sh. Amit Sharma Id. Advocate to represent her case through her power of attorney. This fact clearly shows that Id. Advocate Sh. Amit Sharma was fully authorised by the applicant/defendant to represent her case on dated 13.06.2019. 8. Further, no doubt the witness Sh. Chuni Lal has denied that he was the scribe of the Will in question, but this fact itself is not sufficient to believe that this witness is deposing falsely and required to be declared as hostile. The applicant in the Para No.5 of this application has submitted that applicant wants to prove the Will dated 27.02.2015 by the re- examination of this witness. But as per the provision u/S 63 of Indian Succession Act it requires that a Will cannot be used as an evidence until as required by Section 63 of Indian Evidence Act, one attesting witness has to be called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Such provision makes it clear that for proving the Will at lease one attesting witness is required to be examined, in such circumstances, the applicant had a right to prove her Will by way of examining the attesting witnesses of the Will. At this stage, this Court is satisfied with the arguments advanced by the Id. Counsel for the plaintiff that the applicant cannot be allowed to re-open the evidences and also to fill-up the lacuna on her part. Now, at this stage, the applicant cannot be allowed to take the defence that her counsel has inadvertently not declared the witness as hostile. She cannot take the benefit of the aforesaid omission done on her part. In such circumstances, this Court comes to the conclusion that the present application is not worthy to allow. Accordingly, the present application is dismissed. Tagged with the main case file.” 6. A perusal of these findings demonstrate that learned Trial Court took note of the contention of the petitioner that as the original Counsel engaged by the petitioner was unwell, and because the witness was examined by a vice Counsel, therefore, the witness could not be examined properly. A perusal of the order further demonstrates that qua this contention of the party, learned Trial Court held that the witness was examined by Sh. Amit Sharma, Advocate, who was representing the defendant in this case and zimni orders nowhere referred to Sh. Amit Sharma, Advocate as vice Counsel. Learned Trial Court has also held in para-7 of the order that power of attorney filed on 14.09.2015 on behalf of the defendant demonstrated that Sh. Amit Sharma, Advocate was one of the Counsel engaged. Learned Trial Court thus held that this demonstrated that Sh. Amit Sharma, Advocate, was duly authorised by the defendant to represent her on 13.06.2019. Thereafter, in para-8 of the order learned Trial Court dealt with the contention of alleged omission on the part of learned Counsel for the party and held that the applicant cannot be allowed to take a defence that her Counsel had inadvertently not declared the witness as hostile and she cannot take the benefit of aforesaid alleged omission and on the basis of these findings, the application has been dismissed. 7. During the course of arguments herein, it could not be demonstrated that the findings returned by learned Trial Court that Sh. 7. During the course of arguments herein, it could not be demonstrated that the findings returned by learned Trial Court that Sh. Amit Sharma, Advocate, was duly engaged Counsel by the defendant were incorrect findings. It could also not be demonstrated before this Court that Sh. Amit Sharma, Advocate, was not engaged by the defendant or that he had not filed and signed the vakalatnama on behalf of the defendant. That being the case, as the very foundation of the application filed under Order 18, Rule 17 CPC goes, obviously, the order passed by learned Trial Court cannot be interfered with. The Counsel who examined the witness was not a vice Counsel. He was duly engaged as the Counsel for the party. With the passage of time, a party cannot be allowed to become wiser and further be allowed to fill up the lacunae by filing such applications, as was filed by the petitioner before the learned Trial Court because in case, these kind of applications are allowed by the Court, then it will open a pandora’s box because after some time, any party realising that there is some shortfall in the examination of a witness will seek an opportunity to recall and re-examine the witness afresh on such like grounds as were pleaded in the application in this case. 8. Accordingly, in light of above observations, as this Court does not find any perversity in the order under challenge, this petition is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.