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70 13.U/.ZUII
Present: Mr. Mahender Rana, Advocate for the petitioners.
+ CM (M) No.801/2011 & CM Nos.12686-87/2011
*
The order impugned before this Court is the order dated
28.05.2011 vide which the applications filed by defendants No. 1 to
4 under Order 11 Rule 14, under Order 13 Rule 10 and under
Order 16 Rule 6 read with Section 151 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') praying that the record from the office of the DDA be summoned for confrontation to PW-2 who was yet under cross-examination had been dismissed.
The parties are closely related. The plaintiff has filed a suit for partition; defendant No. 1 is her father; defendant No. 1 is relying upon a will of his deceased wife Smt. Sudarshan Kumar
Bedi alleging that in terms of this Will dated 08.09.1994 the suit property has been bequeathed in his favour. The record shows that the plaintiff's evidence is yet under progress; contention of the petitioner before this Court is that although certified copies of the two affidvits of both the plaintiffs dated 31.12.1999 are on record but in view of categorical stand taken by the plaintiff in their replication denying these documents and contending that the said affidavits are forged and fabricated, it would be incumbent to put the original documents to the witness in their cross-examination.
2011:DHC:7811
To support his submission, he has placed reliance upon a
Present: Mr. Mahender Rana, Advocate for the petitioners.
+ CM (M) No.801/2011 & CM Nos.12686-87/2011
*
The order impugned before this Court is the order dated
28.05.2011 vide which the applications filed by defendants No. 1 to
4 under Order 11 Rule 14, under Order 13 Rule 10 and under
Order 16 Rule 6 read with Section 151 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') praying that the record from the office of the DDA be summoned for confrontation to PW-2 who was yet under cross-examination had been dismissed.
The parties are closely related. The plaintiff has filed a suit for partition; defendant No. 1 is her father; defendant No. 1 is relying upon a will of his deceased wife Smt. Sudarshan Kumar
Bedi alleging that in terms of this Will dated 08.09.1994 the suit property has been bequeathed in his favour. The record shows that the plaintiff's evidence is yet under progress; contention of the petitioner before this Court is that although certified copies of the two affidvits of both the plaintiffs dated 31.12.1999 are on record but in view of categorical stand taken by the plaintiff in their replication denying these documents and contending that the said affidavits are forged and fabricated, it would be incumbent to put the original documents to the witness in their cross-examination.
2011:DHC:7811
To support his submission, he has placed reliance upon a
JUDGMENT
of the Orissa High Court reported in AIR 1987 Orissa 138 Bhaskar
Sahu Vs. Anama Swara and other.
The impugned order had dismissed the application primarily on the ground that since certified copy of the two affidavits is already on record and the intention of the defendant appears only to drag the litigation. This however does not appear to be born out from the legal position or from the factual record. Witness of the plaintiff is yet under the cross-examination; Section 65 of the
Evidence Act permits secondary evidence; however there is a presumption about the genuineness of execution of the original when a certified copy is produced unless the execution of the original has been denied. In this case, the certified copy of the original has been denied. Replication clearly states so.
Let record of the DDA be summoned by the petitioner at his own responsibility for the next date in order that the said record can be confronted i.e. (the two affidavits dated 31.12.1999) for the cross-examination of PW-2. It is pointed out that the next date fixed before the trial court is 16.07.2011. The trial court on the next date will ensure that no further adjournment is granted to the petitioner for the said purpose who shall get record summoned at his own responsibility.
Petition disposed of in the above terms.
A copy of this order be sent back to the trial court for information.
Copy of this order be given dasti under the sinature of the
Sahu Vs. Anama Swara and other.
The impugned order had dismissed the application primarily on the ground that since certified copy of the two affidavits is already on record and the intention of the defendant appears only to drag the litigation. This however does not appear to be born out from the legal position or from the factual record. Witness of the plaintiff is yet under the cross-examination; Section 65 of the
Evidence Act permits secondary evidence; however there is a presumption about the genuineness of execution of the original when a certified copy is produced unless the execution of the original has been denied. In this case, the certified copy of the original has been denied. Replication clearly states so.
Let record of the DDA be summoned by the petitioner at his own responsibility for the next date in order that the said record can be confronted i.e. (the two affidavits dated 31.12.1999) for the cross-examination of PW-2. It is pointed out that the next date fixed before the trial court is 16.07.2011. The trial court on the next date will ensure that no further adjournment is granted to the petitioner for the said purpose who shall get record summoned at his own responsibility.
Petition disposed of in the above terms.
A copy of this order be sent back to the trial court for information.
Copy of this order be given dasti under the sinature of the
INDERMEET KAUR, J.
JULY 15, 2011 a
AW
JULY 15, 2011 a
AW