Case Note & Summary
The petitioners (plaintiffs) filed an application (Exhibit 132) before the trial court seeking permission to examine Krishna Bhonde, who was an attesting witness to a Will dated 15.3.1980 produced by the respondent (defendant). The defendant had on 13.2.2014 kept both attesting witnesses in attendance but examined only one, Rambhau Bagde, and gave up the other, Krishna Bhonde. The trial court rejected the application on the ground that the matter was old and the suit was already fixed for final arguments. The petitioners challenged this order by way of a writ petition before the Bombay High Court, Nagpur Bench. The High Court observed that the application should have been allowed because examining both attesting witnesses would facilitate the trial court in resolving the dispute and deciding upon the validity of the Will appropriately and effectively. The court noted that the respondent would get an opportunity to cross-examine the witness, and thus no prejudice would be caused. Consequently, the High Court set aside the impugned order and allowed the application, directing the trial court to permit the examination of the remaining attesting witness, with the petitioners bearing the expenses for summoning the witness. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Examination of Witness - Permission to examine attesting witness at final argument stage - The plaintiffs sought permission to examine the remaining attesting witness to a Will produced by the defendant, who had examined only one of two attesting witnesses and gave up the other. The trial court rejected the application on the ground that the matter was old and fixed for final arguments. The High Court held that the application should have been allowed as examining both attesting witnesses would facilitate effective adjudication of the Will's validity, and the defendant would have an opportunity to cross-examine, causing no prejudice. (Paras 2-6)
Issue of Consideration
Whether the trial court was justified in rejecting the plaintiffs' application to examine the remaining attesting witness to a Will at the stage of final arguments.
Final Decision
The impugned order is set aside. The application (Exhibit 132) is allowed. The trial court is directed to permit the petitioners to examine the remaining attesting witness, Krishna Bhonde, with the petitioners bearing the expenses for summoning the witness. The writ petition is allowed with no order as to costs.
Law Points
- Examination of attesting witness
- Permission to examine witness at final argument stage
- No prejudice if opportunity for cross-examination given
