The court has the discretion to allow reopening evidence to ensure justice, especially when a vital witness becomes available after prior non-attendance.

2. The present Appeal filed under Section 10 of the Delhi High Court Act, 1966 [hereinafter referred to as “ DHCA ”] read with Delhi High Court Rules assails the correctness of order dated 08.01.2025 [hereinafter referred to as “Impugned Order”], passed by learned Single Judge in I.A. No. 4224/2024 in CS (OS) No. 1546/2009, whereby the learned Single Judge dismissed the application filed by the Appellants [Defendants No.2 to 4 before learned Single Judge] under Order XVI Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”], seeking permission to summon and examine Shri Ajay Gopal the sole surviving attesting witness to the Registered Will dated 24.05.2002 [hereinafter referred to as “Will”] of Late Sh. Ram Chander.

3. For convenience, the parties shall be referred to by their array before the learned Single Judge. Appellant Nos.1 to 3 were Defendant Nos.2 to 4; Respondent Nos.1 to 3 were Plaintiff Nos.1 to 3; Respondent No.4 was Defendant No.1; Respondent Nos.5 to 9 were Defendant Nos.5 to 9, respectively.

FACTUAL MATRIX

4. The facts giving rise to the present Appeal are that the Plaintiffs instituted CS(OS) No. 1546/2009 seeking, inter alia, declaration, partition, permanent injunction, rendition of accounts, mesne profits and damages in respect of the estate of Late Sh. Ram Chander. The Defendant Nos.1 to 7 filed a joint Written Statement in which they relied upon the Will executed by Late Sh. Ram Chander. The Will is stated to have been executed in favour of the Defendant No.1 and the predecessors-in-interest of the Defendant Nos.2 to 4, to the exclusion of the Plaintiffs and Defendant Nos.8 and 9. The Will bears two attesting witnesses, namely, late Shri Ved Pal (expired on 08.12.2008) and Shri Ajay Gopal, the only surviving attesting witness.

5. Issues were framed by the learned Single Judge on 09.08.2011, inter alia, on the legality and validity of the Will. An affidavit by way of examination-in-chief of Shri Ajay Gopal was placed on record on 31.08.2015. Despite service of summons, Shri Ajay Gopal did not present himself for cross-examination on multiple dates. On 07.12.2017, the witness was present in Court but, according to the record, learned counsel for the Plaintiffs declined to cross-examine him on the basis that only a certified copy of the Will and not the original was then on record. Thereafter, the Defendants sought production of the original registered Will by summoning the record clerk/official from the Sub-Registrar’s office; that official was examined and cross-examined on 16.04.2018 and the learned Single Judge recorded the production of entries relating to the Will.

6. Following the witness’ absence, the Defendants filed I.A. No. 5424/2018 for issuance of summons to Shri Ajay Gopal, which was allowed on 23.04.2018. In compliance with Court directions, the Defendants deposited process fee and diet money. Despite service of summons, Shri Ajay Gopal failed to appear on the subsequent date 28.05.2018; on the evening of that date, the Defendant Nos.2 and 4 visited his residence and were informed by Shri Ajay Gopal that he would not appear as a witness. The Defendants thereafter discovered that Plaintiff No.3 had been approaching the witness and had induced him not to depose; the witness stated that as he was related to both families, he did not wish to be drawn into the controversy. Thereafter, the Defendants, having one attesting witness dead and the other refusing to appear, filed I