A witness can be summoned even if no list is filed in earlier point of time or his name is not given in list.

ORDER

The petitioners have preferred this petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 22/11/2021 passed by the Civil Judge, Senior Division, Nagda, Distt. Ujjain (M.P.) in Civil Suit No.1-A/2018, whereby the application filed by the petitioners/defendants under Order XVI Rule 1 of CPC has rejected.

2. Brief facts of the case are that respondent No.1/plaintiff has filed a civil suit for declaration and permanent injunction against the petitioners/defendants in respect of land bearing survey No.750 admeasuring 2.250 hectares situated at Village Lekoda Anjana, Tehsil Nagda, District Ujjain (M.P.). The suit was filed on the basis of a 'will' alleged to have been executed by mother of the petitioners in favour of the plaintiff. During the pendency of the trial, the petitioners/defendants have filed an application under Order XVI Rule 1 of CPC before the trial Court for summoning of the Deputy/Sub Registrar as a witness regarding the overwriting and correction in the will. After hearing both the parties, the trial Court has dismissed the application. Being aggrieved by the same, petitioners have preferred this petition.

3. Learned counsel for the petitioners submits that order passed by the trial Court is against the law and facts. There is a specific pleading in the application that certain manipulation, overwriting and changes have been made in the said "will" and Sub Registrar is required to be summoned as a witness.

The trial Court has not considered the relevancy of the aforesaid witness while rejecting the application. It will affect the entire suit. Hence, he prays that impugned order be set aside and application under Order XVI Rule 1 of CPC filed by the petitioners/defendants be allowed.

4 . Per contra, learned counsel for the respondents submits that impugned order passed by the Courts below is just and proper and not deserve for any interference.

5. Heard learned counsel for both the parties and perused the record.

6. From perusal of the plaint and other documents it appears that plaintiff has failed a suit claiming title over the suit property on the basis of the alleged will, therefore, determination of genuineness of the will is quite necessary. For that purpose, Deputy/Sub Registrar is a relevant witness because the will was executed before him. All these aspects have not been considered by the trial Court. The Court below has erred in examining the matter hyper technically. 7. The co-ordinate Bench of this Court in the case of Mandir Shri Hanuman Murti and Another Vs. Collector Mahoday, Datia and Another reported in 2016(1) MPLJ 72, has held that a witness can be brought by the party even if no list is filed in earlier point of time or his name is not given in list.

8. On the basis of the aforesaid analysis, this Court is of the considered opinion that the Court below was not justified in dismissing the application under Order XVI Rule 1 of CPC. Consequently, impugned order dated 22/11/2021 is hereby set aside and the application preferred under Order XVI Rule 1 of CPC is filed by the petitioners/defendants is hereby allowed. The Court below is directed to proceed from that stage.

9. With the aforesaid, petition is allowed. Certified copy as per rules.

(ANIL VERMA) JUDGE Tej Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 20-03-2024 11:38:52