IMPORTANT POINT
Examination of witnesses – Court at any time after institution of suit can examine witness out of turn.

ORDER (COMMON)

These revision petitions have been filed under Article 227 of the Constitution of India, being aggrieved by the common Order dated 25.01.2022 passed in I.A.Nos.810 and 811 of 2021 in O.S.No.45 of 2021 by the learned XII Additional Chief Judge, City Civil Court, Secunderabad, whereunder, the petitioner/defendant No.1 filed two application seeking to summon the witnesses, are dismissed.

2. Since two revision petitions filed against the common order and as the grounds under which the revision petitions are filed are one and the same and as the learned counsel appearing for both the parties advanced their respective arguments in both revisions as such, it is proposed to dispose of both the revisions under the common Order.

3. As can be seen from the impugned Order in the revision petitions, the petitioner/defendant No.1 filed interlocutory applications under Order XVIII, Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’) seeking permission to examine Mrs.Maya Kishandas Sachdev, W/o late Kishandas Sewaram Sachdev, as a witness on his behalf out of turn i.e., even before the actual trial is commenced in O.S.No.45/2021.

4. In support of the petitions, the petitioner/defendant No.1 filed his affidavit and submitted before the Court below that the respondent/plaintiff filed a speculative suit vide O.S.No.45/2021 and sought for partition of the suit schedule property even there was no such property available for partition. The petitioner has claimed that during the life time of late Sri K.Venkat Rao, who is the father of the petitioner/defendant No.1 and the respondent/plaintiff executed a Will deed on 22.08.2019 and bequeathed all his properties to his wife Smt.K.Laxmi Venkat Rao i.e., the mother of the petitioner/defendant No.1 and the respondent/plaintiff.

5. After the death of the said K.Venkat Rao, his wife inherited all the properties in pursuance of the Will deed executed by her husband. The petitioner has further submitted that his mother being absolute owner of all the properties gifted/bequeathed the properties in favour of the petitioner and executed a registered Will deed dated 28.11.2020. The said Mrs.Maya Kishandas Sachdev, W/o late Kishandas Sewaram Sachdev, who is aged about 79 years is an attesting witness to the above referred Will deed, and it was registered on 02.01.2021 vide Document No.1/111/2021 (CS No.1/2021) of Sub-Registrar, Marredpally, Secunderabad. The petitioner further stated that his mother took extra precautions of getting the Will registered personally and requested Mrs.Maya Krishnadas Sachdev to appear as a witness and she accepted the request of the mother of the petitioner.

6. The petitioner further submitted that one month after the demise of his mother, the said Mrs.Maya Kishandas Sachdev along with Sri Venkatsubbaiah had visited Swarna Palace and they tried to hand over the registered Will deed to the petitioner and respondent No.1 but respondent No.1 did not allow them to hand over the Will deed. After two hours, they handed over the copy of the Will deed to the relatives of the petitioner and the original Will deed is in the custody of the said Mrs.Maya Kishandas Sachdev.

7. The petitioner has further submitted that the said attesting witness Mrs.Maya Kishandas Sachdev is suffering from various ailments and due to her advanced age, she got typhoid recently and she was advised bed rest. Given her fragile health and advanced age, it is imperative that Mrs.Maya Kishandas Sachdev be examined immediately out of turn to prove the case of the petitioner about the execution of the Will deed in his favour by his mother out of free will. The testimony of Mrs.Maya Kishandas Sachdev is vital to prove the Will deed executed by his mother with her free will and volition and it reflected her true intention. The petitioner would suffer grave and irreparable loss if the evidence of Mrs.Maya Kishandas Sachdev is not recorded immediately.

8. Respondent No.1/plaint