-1- 2025:CGHC:10045 NAFR HIGH COURT of CHHATTISGARH AT BILASPUR WP227 No. 835 of 2023 Ashish Kumar Sahu, S/o Shri Late Basant Kumar Sahu, Aged About 46 Years, Present Address- House of Shankar Lal Sahu, In Front of Shiv Mandir, Dharam Nagar, Pachpedi Naka, Raipur, Tahsil and District : Raipur, Chhattisgarh. ... Petitioner versus 1 - Smt. Malti Sahu, W/o Basant Kumar Sahu, R/o Near Shardha Kirana Store, Shivam Vihar, Mahadevghat Road, Raipura, Raipur, Tahsil and District Raipur Chhattisgarh. 2 - Smt. Laxmi Devi Sahu, W/o Late Basant Kumar Sahu, R/o House of Shri S. K. Tikriha, Towards Goal Chowk Raod, Shanti Vihar Colony, Daganiya, Raipur Tahsil and District Raipur, Chhattisgarh. 3 - Alok Sahu S/o Late Basant Sahu, R/o Near Shrdha Kirana Store Shivam Vihar, Mahadevghat Road, Raipura, Raipur Tahsil and District Raipur Chhattisgarh. 4 - Smt. Yogeshwari Sahu, D/o Late Basant Kumar Sahu, W/o Shri Shailendra Sahu, R/o House No. 225, LIG A Sector, Sonagiri, Piplani, Bhopal Tahsil and District Bhopal (M.P.) 5 - Roshni Sahu, D/o Late Basant Kumar Sahu, R/o House of Mahesh Ram Sahu, Shanti Vihar Colony, Daganiya, Raipur Tahsil and District Raipur Chhattisgarh. 6 - Minashi Sahu D/o Late Baant Kumar Sahu, R/o Bhu Vigayan Bhawan, Bhartiya Bhu Vaigyanik Sarvekshan Rajaya Unit, Rohinipuram, Raipur, Tahsil and District Raipur Chhattisgarh. 7- Lokeshwari Sahu, D/o Late Basant Kumar Sahu, R/o House of Shri S. K. Tikriha, Towards Goal Chowk Road, Shanti Vihar Colony, Daganiya, Raipur Tahsil and District Raipur, Chhattisgarh. 8 - Omprakash Sahu, S/o Late Basant Kumar Sahu, R/o House of Shri S.K. Tikriha, Towards Goal Chowk Road, Shanti Vihar Colony, Daganiya, Raipur, Tahsil, District : Digitally signed by NADIM MOHLE -2- Raipur, Chhattisgarh. 9- The State of Chhattisgarh, Through: The Collector Office, Raipur District Raipur Chhattisgarh. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Rishikant Mahobia, Advocate For State : Mr. Dashrath Prajapti, Panel Lawyer For Respondents No. 2 to 8 : Mr. Lukesh Kumar Mishra, Advocate with Mr. Vinay Nagdev, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 28.02.2025 1) The petitioner has filed this petition seeking the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to set- aside the part of impugned order dated 23.08.2023 (Annexure P/1) by which, application U/o. 26 rule 4 r/w section 151 of the CPC was dismissed by the trial court. 10.2 That, this Hon'ble Court may kindly be pleased to allow the application filed by the plaintiff/petitioner U/o. 26 Rule 4 r/w section 151 of the CPC. 10.3 Any other relief deem fit in the present facts and circumstances of this case may also be awarded to the petitioner. 2) Mr. Rishikant Mahobia, learned counsel appearing for the petitioner would submit that the plaintiff filed a suit for declaration of title, permanent injunction and possession over the suit property. He would contend that defendant No.1 is the mother and defendant No.2 is the step-mother of the plaintiff, whereas, defendants No. 3 to 7 are brothers and sisters. He would also contend that the after framing of issues, the case was set for evidence of the parties and at that -3- stage, an application under Order 26 Rule 4 of the CPC was moved for the examination of an attesting witness of the will deed namely, Nathulal Yadu on commission according to provisions of Order 26 Rule 4 of the CPC, on the ground that he was aged about 86-87 years and suffering from various ailments. He would also argue that the one of attesting witnesses, namely, B. R. Verma has already died. It is argued that the learned trial Court rejected the application contrary to provisions of Order 26 Rule 4 of the CPC. 3) On the other hand, Mr. Lukesh Kumar Mishra, learned counsel appearing for respondents No. 2 to 8 would oppose the submissions made by Mr. Mahobia and submit that though the plaintiff/petitioner has filed his affidavit under Order 18 Rule 4 CPC, but he himself is not appearing before the Court for examination and in order to delay the proceedings of the trial, moved an application under Order 26 Rule 4 CPC. He would contend that the petitioner may be directed to appear before the Court for examination. 4) Mr. Dashrath Prajapati, learned Panel Lawyer appearing for the State would submit that there is a dispute between the petitioner and the private respondents. 5) Taking into consideration the fact that the civil suit was filed in the year 2021 and the plaintiff has not been examined yet, the petitioner/plaintiff is directed to remain present on the next date of hearing before the learned trial Court for cross-examination. The learned Trial Court ought to have allowed the application moved by the petitioner under Order 26 Rule 4 of CPC considering the age and -4- the medical condition of the witness. The order dated 23.08.2023 (Annexure P/1) passed by the learned trial Court whereby the application moved under Order 26 Rule 4 CPC read with Section 151 of CPC was rejected, is hereby set aside. 6) The concerned Court shall issue a ‘writ of commission’ for the examination of the sole alive attesting witness to the will deed, namely, Nathulal Yadu to record his evidence according to the law. 7) With the aforesaid observation(s), this petition is disposed of. 8) The interim relief, granted earlier, stands vacated. Sd/- (Rakesh Mohan Pandey) Judge Nadim