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2013 DIGILAW 254 (HP)

MAHESH KUMAR v. RADHA DEVI

2013-04-06

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J. - 1. THIS petition is directed against the order dated 18.2.2013 passed by learned Civil Judge (Jr. Division), Court No.II, Una in Civil Suit No. 146/2005. 2. THE further relevant facts are that respondent No.1 has filed a suit for declaration against the petitioners and proforma respondent No.2. Respondent No.1 is claiming suit property on the basis of Will dated 9.2.2004 of Raghunath Singh. On the contrary, the petitioners are claiming suit property on the basis of Will dated 23.11.2004 of Raghunath Singh, father of the parties. The parties have led evidence and the suit was fixed for arguments, but at that stage the petitioners moved an application under Section 151 CPC for additional evidence to prove Will dated 23.11.2004 and copies of mutation Nos. 302 and 644. The learned counsel for the petitioners has submitted that Will dated 23.11.2004 is a registered Will. In the impugned order, the learned Civil Judge has observed that the petitioners took nine opportunities to lead their evidence and no steps were taken to produce the copy of the Will now sought to be proved by additional evidence nor they summoned any witness of the Will. On the contrary, the petitioners closed their evidence on 9.4.2012. These observations recorded in the impugned order have not been disputed. 3. IN the application, the petitioners have stated that the original Will was traced on the date of preparation of the application even though copies of mutation Nos. 302 and 644 were available on 13.1.2012. The petitioners closed their evidence on 9.4.2012 but till then they took no steps for placing on record copies of mutation Nos. 302 and 644 even though those copies were with them on 13.1.2012. There is no explanation why copies of mutation Nos. 302 and 644 were not placed earlier. 4. IN so far additional evidence for proving Will dated 23.11.2004 is concerned, the petitioners have not made out any case. Will dated 23.11.2004, according to the petitioners, is a registered document, assuming that original Will dated 23.11.2004 was misplaced and it was traced only on the date of filing of the application but there is no explanation why the petitioners did not take any steps for proving the Will dated 23.11.2004 by leading secondary evidence. Will dated 23.11.2004, according to the petitioners, is a registered document, assuming that original Will dated 23.11.2004 was misplaced and it was traced only on the date of filing of the application but there is no explanation why the petitioners did not take any steps for proving the Will dated 23.11.2004 by leading secondary evidence. It appears the application is nothing but an after thought attempt of the petitioners to prolong the decision in the case and to fill-up the lacuna. The petitioners were thoroughly negligent. The Court below has rightly appreciated the material on record. No fault can be found in the impugned order. There is no error of jurisdiction. Hence, the petition is dismissed, so also the pending applications. Petition is dismissed.