JUDGMENT : Though served, the respondent has chosen not to appear before this Court despite giving various opportunities. 1. Admit. 2. In the present appeal, the appellant-original plaintiff no.3 is assailing the judgment and order dated 02.07.2008 passed by the City Civil Court, Ahmedabad in Civil Suit No.5276 of 1997 rejecting the suit. 3. The present appellant-original plaintiff no.3 preferred Civil Misc. Application No.130 of 1997 before the City Civil Court, Ahmedabad inter alia requesting for letter of administration with regard to assets of Mahant Adhyodasji Guru Purshottamdasji. An objection was raised by the respondent no.2 in the filing of Civil Misc. Application and hence, the said application was converted into Civil Suit No.5276 of 1997, which has been dismissed. The issuance of the letter of administration was sought by the appellant with regard to the assets mentioned in Schedule I and II of the Civil Suit No.5276 of 1997 and during the pendency of the said suit, plaintiff nos.1 and 2 passed away and the appellant herein, who is the sole survive as plaintiff, continued with the suit. During the pendency of the said suit, the original defendant has also passed away and pursuant to the order dated 15.12.2014 passed in Civil Revision Application No.299 of 2014, Shri Akshaydasji Guru Sheshnarayandasji was joined as representative of the deceased-original defendant. Since the court below, while passing the impugned order, did not include the name of Shri Akshaydasji Guru Sheshnarayandasji as party defendant and in order to avoid complication, the appellant preferred appeal joining Shri Akshaydasji Guru Sheshnarayandasji as party respondent. 4. Brief facts leading to filing of the present appeal are as under: 4.1. Mahant Ayodhyadasji Guru Purshottamdasji executed a registered Will dated 15.11.1997 wherein he declared that he was earlier known as Purohit Anopji Pratapji before he denounced the material world. The said Will was registered before Sub-Registrar, Ahmedabad at Serial No. 12453. The said Will provided that fixed deposits and other movable properties be used by the Trustees named i.e. original plaintiffs towards purpose specified in the Will. 4.2. On Mahant Ayodhyadasji Guru Purshottamdasji being declared as dead, the appellant along with other plaintiffs made Civil Misc. Application No. 130 of 1997 to obtain a ‘Letter of Administration’ for movable assets specified in Schedule I and II in accordance with the registered Will dated 15.11.1979. 4.2. On Mahant Ayodhyadasji Guru Purshottamdasji being declared as dead, the appellant along with other plaintiffs made Civil Misc. Application No. 130 of 1997 to obtain a ‘Letter of Administration’ for movable assets specified in Schedule I and II in accordance with the registered Will dated 15.11.1979. Sheshnarayandasji Guru Ayodhyadasji raised objection and therefore, the said application was converted into Civil Suit No. 5276 of 1997. 4.3. The appellant has produced copy of Fixed Deposit Receipts/Certificate and Statement of Savings Bank Account as Schedule I and II. The appellant further, vide list of documents Exh.3, has produced various documents, including copy of the registered Will along with original Civil Misc. Application No. 130 of 1997. The appellant has further given oral evidence in terms of depositions (Exh.41 and 81) of the appellant as well as Mohammad Farook Imambhai Shaikh, who was witness to the Will dated 15.11.1979. The respondent herein, having given his written statement at Exh.9, has not produced any documentary or oral evidence. 5. It is the case of the plaintiff, though the defendant did not produce any evidence, the trial court vide the impugned judgment and decree has dismissed the suit. 6. Learned advocate Mr.Dev D. Patel appearing for the appellant has submitted that the impugned judgment and decreed passed at Exh.83 is required to be set aside since the same is passed by ignoring the facts. It is submitted by him that in fact the observations made by the trial court, more particularly paragraph no.15 of the judgment, are incorrect since the appellant has produced the copy of fixed deposit receipts, bank certificate and statement of account as Schedule I and II of the original Civil Misc. Application No.130 of 1997, which was converted into Civil Suit No.5276 of 1997 along with other documents, which automatically can be said to be part of Civil Suit No.5276 of 1997, which has been converted from the said Misc. Application. 7. It is submitted by him that the trial court should have appreciated the documents which are produced along with the Civil Application and it was not required to be produced again on the conversion of the Civil Misc. Application. Application. 7. It is submitted by him that the trial court should have appreciated the documents which are produced along with the Civil Application and it was not required to be produced again on the conversion of the Civil Misc. Application. He has further submitted that the registered Will dated 15.11.1979 was produced at Exh.71 and the Xerox copy has been verified and the signature thereto have also been identified and the contents have been proved through the examination of the witnesses to the Will below Exh.81. 8. Learned advocate Mr.Patel has submitted that the appellant preferred an application below Exh.26, wherein it was specifically pointed out that the original copy is in the custody of the Charity Commissioner, which is retained vide order dated 25.02.2000 passed in Change Report No.649 of 1990 and hence, the Trial Court should have called the same from the Charity Commissioner, however, the said application has not been considered. Thus, he has submitted that the contents of Will once have been proved through witnesses, the Will at Exh.71, should have been declared as admissible and accordingly, the letter of administration with regard to the assets of late Mahant Shri Ayodhyadasji Guru Purshottamdasji should have been issued. 9. As noted hereinabove, the respondent has chosen not to appear before this Court. Hence, this Court is left with no other option, but to finally decide the present appeal in his presence. 10. The facts, as narrated hereinabove, are not in dispute. This Court has also perused the Record and proceedings. 11. While dismissing the suit of the appellant, the trial court has been specifically impressed upon the facts that the appellant plaintiff had not produced any original or xerox copy of receipt of the fixed deposit amount nor has he produced any bank certificate for proving that the said amount is still lying in the fixed deposit in Punjab National Bank, Maskati Market Branch or in the Central Bank of India, Raipur Chakla Branch as he has deposed in examination-in-chief. The details of aforesaid fixed deposit are incorporated in para-13 of the impugned judgment and order. 12. This Court has perused the original record and it is found that the appellant had produced all the aforesaid documents, which are mentioned in scheduled-I in Civil Misc. Application (for letters of administration) No.130 of 1997. Thus, once the documents were already on record of Civil Misc. 12. This Court has perused the original record and it is found that the appellant had produced all the aforesaid documents, which are mentioned in scheduled-I in Civil Misc. Application (for letters of administration) No.130 of 1997. Thus, once the documents were already on record of Civil Misc. Application, the same should have been considered by the Trial Court on the conversion of Civil Misc. Application into Civil Suit No.5276 of 1997. This Court has also perused the concerned Will at Exh.71. The witnesses to the Will at Exh.71 are examined at Exh.81 and as per the deposition recorded below Exh.81 of one Mohammad Farukh Imambhai Shaikh, the execution of the Will at Exh.71 has been proved. This Court has also perused the application dated 14.07.2009 at Exh.26, which is filed by the present appellant specifically stating that the original copy of Will is in the custody of the Charity Commissioner, which has been retained by the order dated 25.02.2000 passed in Change Report No.649 of 1990. However, it appears that, despite the aforesaid application being filed the court below did not exercise the powers under Section 267 of the Indian Succession Act, 1925, which empowers a District Judge to call for or any order to person to produce and bring into court any paper or writing being or purporting to be testamentary which may be shown to be possession or control of such person. 13. The trial court in paragraph nos.16 and 17 of the impugned judgment and order as though observed that the plaintiff-appellant did not care to do so to produce the certified copy to the original Will and instead he has produced a simple xerox copy of the said Will. In the considered opinion of this Court, once an application below Exh.26 was filed inviting the attention of the court below that the original Will was in custody of the Charity Commissioner, which has been retained by the order dated 25.02.2000 passed in Change Report No.649 of 1990, the court should have exercised its power under Section 267 of the Indian Succession Act, 1925. It is also noticed by this Court that in paragraph no.17 of the judgment, the deposition of the witness PW-2, which has been recorded below Exh.81, is also discussed and it is specifically stated that the said witness has deposed that he has signed the said Will before the Sub-Registrar, Ahmedabad, and the defendant has not cross-examined both the witnesses produced by the plaintiff appellant. The deposition of the aforesaid witnesses have been discarded for the reason that they are not cross-examined by the defendants. Such an approach of the trial court is difficult to comprehend. On the contrary, the testimonies of the witnesses have remained unchallenged as the same are not cross-examined by the defendants. A perusal of the impugned judgment and order reveals that the same suffers from patent illegality and perversity and hence, the same is requires to be set aside. 14. In view of the aforesaid lacune pointed out in the proceedings, which have been undertaken by the court below, this Court has no option, but to remand the matter to the City Civil Court, Ahmedabad. The impugned judgment and order 02.07.2008 is hereby quashed and set aside. Civil Suit No.5276 of 1997 is ordered to be restored to its original file. The Trial Court, after affording opportunity of hearing to the respective parties, shall dispose of the suit within a period of six months since the civil suit is of 1997. 15. It is clarified that, if the defendants do not choose to appear and contest the suit even after giving reasonable opportunity, the suit shall be decided in accordance with law. 16. The appeal is allowed. Record and proceedings to be sent back to the trail court.