The power under Section 151 of the Code of Civil Procedure should be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

JUDGMENT :

JYOTSNA REWAL DUA, J.

1. An application under Section 151 of the Code of Civil Procedure moved by the petitioners (defendants) for reopening the evidence by summoning, calling and examining the witnesses of will has been dismissed by the learned Trial Court vide order dated 15.01.2021. Aggrieved, instant petition under Article 227 of the Constitution of India has been preferred by them.

2. Heard learned counsel for the petitioners and gone through the appended record. Parties are hereinafter referred to as they are before the learned Trial Court.

3. Suit was filed by the respondent/plaintiff for declaration to the effect that he and defendant No.1 are the joint owners in possession with half share each of the suit land detailed in the plaint. The will dated 09.06.2005 executed by their father late Sh. Ram Asra in favour of defendant No.1 and Satish Kumari (widow of late Sh. Ram Asra) and the will dated 28.06.2006 executed by Smt. Satish Kumari in favour of defendants No.2 and 3 (sons of defendant No.1) are fraudulent, illegal and void ab-initio qua the rights of the plaintiff. The suit was contested by the defendants and evidence was led by them for proving the authenticity of the wills in question. The defendants closed their evidence on 05.08.2017, whereafter the matter was fixed for arguments. On 23.12.2020, defendants moved an application under Section 151 CPC for permission to reopen the evidence. The same having been declined by the learned Trial Court vide the impugned order, instant petition has been preferred.

4(i). The petitioners/defendants invoked inherent powers of the Court under Section 151 of the Code of Civil Procedure for reopening the evidence. In the application, the petitioners/defendants intended to examine three witnesses. First is Sh. Bachitar Singh, Tehsildar, who is stated to be the Sub-Registrar concerned. According to the defendants, he could not be examined earlier as he was transferred and his correct address was not available with them till 17.12.2020. Second witness intended to be examined is Registration Clerk from Sub-Registrar Office, Una. The defendants submit that the entries on the back side endorsement column of the wills were made by the Registration Clerk in his own handwriting and therefore, he was in a better position to authenticate the handwriting of the Sub-Registrar as well as marginal witnesses of the wills. Thirdly, the defendants seek to examine one Sh. Subhash Chand, Lambardar on the ground that the questions, which were required to be put to the already examined attesting witnesses DW2 and DW3, were not put to them due to inadvertence, therefore, there was necessity to examine Sh. Subhash Chand, Lambardar for proving the will. His name was already there in the list of witnesses, but inadvertently was not summoned by them. The respondent/plaintiff contested the application by submitting that petitioners/defendants had availed nine adjournments for leading their evidence. After thorough application of mind, they produced their witnesses and closed the evidence on 05.08.2017. Even thereafter an application was moved by them under Order 8 Rule 1-A(3) CPC without any reference to prayers being made now. Law does not permit them to fill up lacuna in their evidence and certainly not at this stage.

4(ii). Suit was filed by the respondent/plaintiff in 2008. It is seen from the impugned order that the case was listed for production of defendants’ witnesses on 22.02.2016. The defendants failed to produce the evidence. Thereafter, the matter was listed on 21.04.2016. It was again adjourned to 16.06.2017. On failure of the defendants to lead evidence, the matter was adjourned to 05.08.2017 as last opportunity for production of witnesses by them on self-responsibility. This order was accepted by them. Four witnesses were examined by the defendants on 05.08.2017 and by way of a separate statement, closed their evidence. The matter was thereafter ordered to be listed for arguments on 30