IMPORTANT POINT
Power to recall a witness cannot be invoked to fill up omission in evidence already led by a witness.

Sandeep Sharma, J.—By way of instant petition filed under Article 227 of the Contitution of India, challenge has been laid to the order dated 16.12.2016, passed by learned Civil Judge (Junior Division) Manali, District Kullu, Himachal Pradesh in Civil Suit No. 33/2012, whereby application filed under section 151 CPC on behalf of the petitioners-defendants (here in after, ‘defendants’) for leading additional evidence has been dismissed.

2. Briefly stated the fact as emerge from the record are that the respondents-plaintiffs (hereinafter, ‘plaintiffs’) filed a suit for declaration and prohibitory injunction, alleging therein that Will dated 20.11.2007, is illegal, null and void and not binding upon the plaintiffs. By way of aforesaid suit, plaintiffs also prayed that the defendants be restrained from interfering in the ownership and possession of plaintiffs over the suit land, on the basis of Will, allegedly executed in their favour as well as mutation attested by Assistant Collector 2nd Grade, Manali, District Kullu, bearing No. 142 dated 17.11.2011. Defendants, while refuting the claim as set up by the plaintiffs in the plaint, filed written statement and controverted the allegations as contained in the plaint. Defendants specifically denied that property in suit was inherited by the plaintiffs including proforma defendant. Defendants rather claimed that the suit land was bequeathed by deceased Ridku in favour of defendants No. 1 and 2 sons of late Mangal Chand, by way of Will, which was executed on 19.11.2007 and registered on 20.11.2007, in the office of Sub Registrar, Manali. As per defendants, testator namely Ridku, by way of aforesaid Will, bequeathed land measuring 4 Biswa in favour of Mangal Chand (predecessor-in-interest of the defendants), on 15.3.2008, i.e. much prior to the death of testator, Ridku. Defendants further claimed that the mutation was attested on 17.1.2011, in their favour and at that relevant time, no objections, whatsoever, were raised by the plaintiffs and, accordingly, authorities attested and sanctioned mutation in favour of the defendants. Learned Court below, on the basis of pleadings adduced on record by the respective parties, framed as many as seven issues including issue No. 2 i.e. “Whether Will dated 20.11.2007, is null and void? OPP” Onus, if any, to prove the Will i.e. Ext. PW-1/D is/was upon the plaintiffs. It emerges from record that defendants after examination of plaintiff’s witnesses got their statements recorded, but since defendants failed to produce witnesses with regard to execution of aforesaid Will, they moved an application under section 151 CPC before the court below, annexure P-3, seeking therein permission to lead additional evidence. Defendants, in the application referred to above, contended that inadvertently, they could not examine and produce scribe, marginal witnesses of Will dated 19.11.2007 and Registration Clerk of the office of Sub Registrar, Manali, while leading defendants’ evidence, as such, they may be allowed to examine following persons:

“(i) Sh. Vivek Bodh Advocate Manali, the Scribe of the Will dated 19-11-2007.

(ii) Sh. Luder Chand-Chowkidar, Gram Panchayat Nasogi, R/o Village Siyal, Tehsil Manali District Kullu HP.

(iii) Sh. Bhag Chand S/o late Sh. Mehar Chand R/o Koshla P.O. Vashisht, Tehsil Maanli, District Kullu, HP.

(iv) Sh. Atma Ram Numberdar s/o late Sh. Haru Ram R/o Village nasogi P.O. Chhiyal, Tehsil Manali District Kullu, HP.

(v) Registration Clerk office of Sub-Registrar Manali with the record of Will Dated 19-11-2007 Registered on 20-11-2007 vide serial No.35 Executed by late Sh. Ridku Ram S/o late Sh. Dilu R/o Village Gadherni Phati Shaleen Kothi and Tehsil Manali, District Kullu, HP.”

3. Defendants submitted before the Court below that afore mentioned witnesses are material witnesses and their examination is quite necessary for just decision of the case at hand and in case, application is allowed no prejudice whatsoever, shall be caused