Full Text
HIGH COURT OF DELHI
JUDGMENT
20635/2025 SUDESH & ORS. .....Appellants
Through: Mr. Gaurav Sarin, Sr. Adv. with Mr. Pradeep Khatri, Mr. Sahil Bhardwaj, Mr. Preet Pal
Singh, Ms. Tabupreet Kaur, Ms. Medha Navami, Advs.
Through: Ms. Smita Maan, Mr. Vishal Maan, Mr. Kartik Dabas, Mr. Yuvraj Dahiya, Advs.
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR
1. In substance, the issue before this Court is whether the sole surviving attesting witness to the Will should or should not be permitted to appear once the defence evidence has been formally closed. It is noteworthy that his affidavit in lieu of examination-inchief was filed as far back as 31.08.2015 and continues to remain part of the record. The only step pending is his cross-examination, which could not be conducted earlier on account of his non-appearance.
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.A. No. 9308/2018 under Order XVI Rule 1 read with Section 151 of the CPC seeking permission to produce the scribe who was present at the time of execution/registration of the Will.
7. By an order dated 19.03.2019, I.A. No. 9308/2018 was allowed and the affidavit of Shri Deepak Sharma (the scribe who drafted and registered the Will) was filed on 06.04.2019. Shri Deepak Sharma tendered his examination-in-chief on 29.04.2019 and was partly crossexamined. However, on account of repeated adjournments sought by the parties, inter alia owing to the COVID-19 pandemic, and due to the witness‟ intermittent illness and subsequent unwillingness to continue, his cross-examination remained incomplete. On 21.07.2023, learned counsel for the Defendants recorded that the defence evidence stood closed.
8. On 07.02.2024, however, Shri Ajay Gopal contacted Defendant No.2 and expressed his willingness to attend and give evidence, stating that his earlier non-attendance had been on account of threats and undue influence exerted by Plaintiff No.3. Consequent thereto, the Defendant Nos. 1 to 7 filed I.A. No. 4224/2024 under Order XVI Rule 1 read with Section 151 of the CPC seeking leave to summon and examine Shri Ajay Gopal as a witness in the witness box for recording his examination-in-chief and for cross-examination.
9. The Plaintiffs opposed I.A. No. 4224/2024 on the grounds that the Defendants had voluntarily closed their evidence; that coercive measures under Order XVI of the CPC were not invoked earlier; that the plea of being „won over‟ was belated and unsubstantiated; and that reopening evidence at a late stage would cause further delay in a suit instituted in 2009.
10. The learned Single Judge after hearing arguments from both sides, vide the Impugned Order, dismissed the application predominantly on the following grounds: i. that the Defendants had consciously elected to close their defence evidence on 21.07.2023 despite the attesting witness having been available earlier; ii. that the Defendants had not availed themselves of the coercive processes under Order XVI Rules 10 and 12 of the CPC at the relevant time (proclamation/warrant/attachment/fine) to secure the attendance of Shri Ajay Gopal; iii. that the plea that the witness had been „won over‟ or threatened by the Plaintiffs had not been placed on record contemporaneously and was raised belatedly; and iv. that the suit being of long standing (instituted in 2009), indulgence at the stage of final arguments would occasion further delay and was therefore not permissible.
CONTENTIONS OF THE APPELLANTS
11. Learned senior counsel for the Appellants submitted that the Will is a document of central consequence and that the attestation of the instrument is material to its probative value. It was urged that Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 [hereinafter referred to as “BSA”] places the attesting witness at the heart of proof where an attested document is in issue and that one attesting witness should ordinarily be called, if alive and subject to process of the Court.
12. Reliance was placed upon Shah Babulal Khimji v. Jayaben D. Kania[1] to contend that an order which effectively forecloses the valuable right of a party to lead material evidence on the central issue of the case amounts to a “judgment” within the meaning of Section 10 of the DHCA, and is therefore appealable.
13. Reliance was also placed on the fact that an affidavit constituting examination-in-chief of Shri Ajay Gopal was placed on record on 31.08.2015, that I.A. No. 5424/2018 for summons to the witness was allowed on 23.04.2018, that process fee and diet money were deposited, and that the Defendants personally approached the witness at his residence when he failed to attend the Court on 28.05.2018. It was submitted that the bona fides of the Defendants in their repeated attempts to secure his presence are evident from the record.
14. It was further submitted that the Defendants had, in good faith and as an alternative mode of proof, examined Shri Deepak Sharma, scribe of the Will, after obtaining permission through I.A. NO. 9308/2018 when the attesting witness repeatedly declined to appear, and that the closure of evidence recorded on 21.07.2023 was necessitated by the witness‟ refusal to appear and by uncontrollable disruptions, including those arising from the COVID-19 pandemic.
15. Reliance was placed on K.K. Velusamy v. N. Palanisamy[2] and Shyam Sel and Power Ltd. v. Shyam Steel Industries Ltd.[3] to contend that the Court‟s discretion to permit reopening of evidence or production of additional evidence must be exercised to advance the cause of justice, particularly where the evidence is highly material and its absence may result in failure of justice.
16. Learned senior counsel emphasised that on 07.02.2024, Shri Ajay Gopal re-approached Defendant No. 2, who expressed willingness to depose, explaining that his earlier non-attendance was due to threats/undue influence by Plaintiff No. 3, and contended that the learned Single Judge ought to have considered these allegations and exercised its discretion to permit the witness‟ evidence subject to suitable safeguards, rather than dismissing the application on the ground of belatedness.
17. Reliance was placed on Hari Singh v. Kharaiti Lal & Sons[4] and HDFC Ltd. v. Anukaran Malik[5] to urge that where material evidence is essential for a just decision, the Court is vested with ample powers to allow its production even at a belated stage, subject to conditions that may be imposed to obviate prejudice.
CONTENTIONS OF THE RESPONDENTS
18. Per contra, learned counsel for the Respondents contended that the Appeal is not maintainable in view of the fact that the Defendants had voluntarily closed their defence evidence on 21.07.2023, having already examined an alternative witness, Shri Deepak Sharma. It was submitted that the Defendants consciously elected to proceed with the trial on the basis of the evidence then available and that once evidence is closed, a party cannot claim an unqualified right to re-open it, particularly at the stage when the matter had been listed for final arguments. It was emphasised that the closure of evidence is a formal step which, once taken, amounts to an election by the party, and cannot be lightly set aside without compelling circumstances.
19. It was further contended that the Defendants had, at all times, the statutory remedy available under Order XVI Rules 10 and 12 of the CPC to secure the attendance of Shri Ajay Gopal, including issuance of proclamations, warrants, attachment of property, or imposition of fines, but failed to invoke any of these measures when the attesting witness repeatedly did not appear, despite service of (1995) 32 DRJ 309 (2022) 1 AD (Delhi) 298 summons and Court directions. It was submitted that the nonappearance of the witness could have been addressed at the relevant stage by availing the coercive powers of the Court, and the Defendants‟ failure to do so disentitles them from seeking indulgence at a belated stage.
20. Learned counsel contended that the plea that the witness had been „won over‟ or threatened by Plaintiff No.3 was never placed on record contemporaneously and was only raised after a lapse of several years, making it ex post facto and inherently suspect. No affidavits, complaints, or police reports were filed at any point to substantiate such allegations, and no attempt was made to bring the matter to the notice of the learned Single Judge at the time when the witness initially failed to appear.
21. It was also submitted that permitting the Appellants to summon Shri Ajay Gopal at this late stage would occasion prejudice to the Respondents, who have prepared for the final arguments based on the closure of evidence, and would further prolong a suit instituted in 2009, which has already experienced significant delays over the years. It was emphasised that reopening evidence at such an advanced stage would undermine the orderly conduct of proceedings and set a dangerous precedent, allowing parties to renege on strategic decisions regarding evidence closure.
ANALYSIS & FINDINGS
22. This Court has considered the submissions of learned counsel for the parties and carefully perused the record, including the Impugned Order.
23. Statutory Framework- The legal framework relevant to the present Appeal is contained in contained in Sections 67, 68 and 70 of the BSA, and Order XVI Rules 10 and 12 of the CPC, which provide as follows– Section 67 of the BSA –
67. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] xxx xxx xxx Section 68 of the BSA –
68. Proof where no attesting witness found.––If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person. Section 70 of the BSA –
70. Proof when attesting witness denies the execution.––If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Order XVI of the CPC– Summoning and Attendance of Witnesses Rule 10. Procedure where witness fails to comply with summons.— [(1) Where a person has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court— (a) shall, if the certificate of the serving officer has not been party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.] (2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. (3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12: Provided that no Court of Small Causes shall make an order for the attachment of immovable property. Rule 12. Procedure if witness fails to appear.— [(1)] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any: Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment. [(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.] Section 67 of the BSA requires that where a document must be attested, at least one attesting witness, if alive and subject to the Court‟s process, should ordinarily be called to prove its execution. Sections 68 and 70 of the BSA provide mechanisms for proving the execution where the attesting witness cannot be found or denies execution. Order XVI Rules 10 and 12 of the CPC empower the Court to secure attendance of witnesses, including issuance of proclamations, warrants, attachment, or imposition of fines.
24. The exercise of judicial discretion to admit evidence, after evidence has been closed, is well-settled. Such discretion must be exercised judiciously, balancing the need to avoid procedural gamesmanship and delay against the overriding requirement that material evidence bearing on the real controversy be placed before the Court for adjudication on merits. In determining whether to allow evidence to be re-opened, the Court must consider: i. the materiality of the evidence sought to be adduced; ii. the bona fides of the party seeking to re-open evidence; iii. whether the opposing party would suffer prejudice of an irreversible kind; and iv. whether reasonable safeguards and time-bound directions can be fashioned to mitigate any risk of prejudice or delay.
25. Applying the above principles to the facts of the present case, it is evident that the proposed evidence is highly material. The Will dated 24.05.2002 is the foundation of the dispute, and attestation by Shri Ajay Gopal, the sole surviving attesting witness, is central to establishing its execution and validity. The attesting witness is not only alive but has now voluntarily expressed willingness to depose, thereby placing the Appellants in a position to present evidence that was previously inaccessible through no fault of their own.
26. The record demonstrates that the Appellants had made repeated, bona fide efforts to secure Shri Ajay Gopal‟s attendance. His affidavit by way of examination-in-chief had already been filed and forms part of the record. Applications for summons were filed, process fees and diet money were deposited, and the Appellants even approached the witness personally when he failed to appear on 28.05.2018. Despite these efforts, the witness initially refused to testify owing to external influence and personal considerations. These circumstances were neither foreseeable nor attributable to any procedural negligence on the part of the Appellants.
27. The closure of defence evidence on 21.07.2023, which the learned Single Judge emphasized, was dictated by practical necessity rather than strategic choice. The Appellants were constrained by repeated non-attendance of the witness, partial cross-examination of the scribe due to illness, and the exceptional disruptions caused by the COVID-19 pandemic. In this context, the subsequent willingness of Shri Ajay Gopal to depose constitutes a genuine opportunity to ensure that the Court has before it material evidence relevant to the real controversy.
28. While the Respondents are correct that procedural remedies under Order XVI Rules 10 and 12 of the CPC exist, the mere existence of such remedies does not preclude the Court from exercising its discretion to admit evidence when justice so requires. The overriding objective is to ensure adjudication on the merits rather than to allow procedural technicalities to frustrate the presentation of crucial evidence.
29. The Supreme Court in K.K. Velusamy (supra) has held that the Court possesses inherent power to permit reopening of evidence where the interest of justice so demands, provided the application is bona fide and subject to conditions to prevent prejudice. Similarly, in Shyam Sel (supra), it was reiterated that procedural rules are intended to advance the cause of justice and not to obstruct it. In the present case, the Appellants‟ application is bona fide, and permitting the attesting witness to be examined will not occasion irreparable prejudice to the Respondents, who can be adequately safeguarded by appropriate directions.
30. Even if the I.A. No. 4224/2024 were not to be treated strictly as an application for recalling a witness, it could nonetheless be considered as an application for leading additional evidence under Section 151 of the CPC. The inherent powers of the Court enable it to permit production of such evidence if the ends of justice so require. The refusal to exercise such discretion on the ground of “belatedness” overlooks the settled principle that material evidence should not be shut out unless irretrievable prejudice is shown.
31. Further, even if this Court were to assume, arguendo, that the present Appeal is not maintainable under Section 10 of the DHCA, the supervisory jurisdiction under Article 227 of the Constitution of India empowers this Court to correct jurisdictional errors or perversity in the exercise of discretion by the learned Single Judge. The refusal to summon and examine the sole surviving attesting witness, despite his affidavit already forming part of the record, would clearly warrant such interference.
32. It also bears emphasis that the affidavit in lieu of examinationin-chief of Shri Ajay Gopal was filed nearly a decade ago in 2015. The only impediment in the path of considering the evidence of the sole surviving attesting witness is the absence of cross-examination, which can now be completed. The situation, therefore, is not one where fresh evidence is sought to be introduced at a belated stage; rather, it is a case where the completion of an already initiated process of examination had been interrupted and remained incomplete due to circumstances beyond the control of the Appellants.
33. Insofar as the maintainability of this Appeal is concerned, reliance on Shah Babulal Khimji (supra) is apposite. The Supreme Court therein clarified that an order which effectively forecloses the valuable right of a party to lead material evidence on the central issue of the case amounts to a “judgment” within the meaning of Section 10 of the DHCA, and is therefore appealable. The Impugned Order, which dismisses the application to summon the sole surviving attesting witness, squarely falls within that category.
34. The plea that the witness‟ earlier absence was due to threats or undue influence by Plaintiff No.3, though belatedly raised, cannot be discarded in limine in the face of his voluntary re-appearance and willingness to testify. Courts have consistently recognised that justice is best served when decisions are rendered on the basis of all material evidence. The Division Bench of this Court in Hari Singh (supra), as well as in Anukaran Malik (supra), has emphasised that where crucial evidence is available and its exclusion would result in a miscarriage of justice, the Court ought to permit its production even at a belated stage, subject to appropriate safeguards.
35. In these circumstances, this Court is satisfied that the learned Single Judge erred in refusing to summon Shri Ajay Gopal. The Appellants‟ application was bona fide; the evidence sought is central to the matter in controversy; and reasonable directions can be framed to safeguard the interests of the Respondents, including expeditious recording of the witness‟ testimony.
CONCLUSION
36. Accordingly, the present Appeal is allowed. The Impugned Order dated 08.01.2025 passed by the learned Single Judge in I.A. NO. 4224/2024 is set aside.
37. I.A. No. 4224/2024 filed by the Appellants under Order XVI Rule 1 read with Section 151 of the CPC is allowed. The learned Single Judge shall summon and examine Shri Ajay Gopal, the sole surviving attesting witness to the Will dated 24.05.2002, on a date to be fixed not later than six weeks from today, with directions ensuring that his evidence is recorded expeditiously and the Respondents‟ right of cross-examination is fully preserved.
38. All pending applications stand closed. ANIL KSHETARPAL, J. HARISH VAIDYANATHAN SHANKAR, J. SEPTEMBER 25, 2025 jai/pal