K.J. Manjunath and K.J. Ravishankar vs Anitha Ramesh @ K.J. Anitha and Others

A.S. Pachhapure, J.—The Petitioners have challenged the order at Annexure-E on I.A. No. 5 rejecting their application to examine the attesting witnesses of the Will said to have been executed by the father of Petitioners.

The facts relevant for the purpose of this petition are as under :

I will refer to the parties as per their rank before the Court below for the purpose of convenience.

The Petitioners herein are the Defendants whereas the Respondents are the Plaintiffs. They instituted a suit bearing O.S. No. 2902/2007 seeking partition and separate possession of their 1/4 share in the suit schedule properties. The Petitioners filed the written statement and for the grounds stated therein sought for dismissal of the suit. It is their specific contention that their father executed a Will dated 31.8.2006 and that Sri. K.S. Shiva Prakash and Sri. M.C. Thippeswamy aged 68 and 48 years respectively are the attesting witnesses to the said Will and they have sought the permission of the Court to examine the said witnesses as there is possibility that the commencement of the trial should not turn out as an disadvantage in the matter of placing evidence before the Court of one of the witnesses in the case. It is also stated in the affidavit filed in support of the application that the examination of these persons is necessary not only for the purpose of disposal of the interim application but also for the disposal of the suit itself. In these "circumstances, they sought for permission to examine the attesting witnesses to the Will. The said application was objected and the Trial Court after hearing the cousnel for the parties has rejected the application and aggrieved by the same, the instant petition has been filed.

I have heard the learned Counsel for both the parties.

The counsel for the Petitioners has relied upon a decision reported in Channabasappa Yallappa Karaddi Vs. Hanamappa Channabasappa Karaddi, wherein the witness who was aged about 84 years was suffering from heart ailment and low blood pressure wanted to get examined himself at the earliest before death strikes him. In these circumstances, this Court exercising the powers vested under Order 18 Rule 16 held that the Petitioner has made out a just cause to examine the witness as he is old aged and suffering from severe ailments. The counsel for the Petitioners submit that in case if the witnesses are examined, there would not be any injustice to the Plaintiffs.

Now, as could be seen from the impugned order, the Court has observed that the written statement by some of the Defendants has not been filed and the issues have not been framed. Before examining the witnesses, it is necessary that all the Defendants should file the written statement and also the Court has to frame the issues on which the evidence has to be led. In the absence of the written statement or framing of the issues, the evidence of the witnesses cannot be recorded. Furthermore, as could be seen from the age of the two attesting witnesses, except that the witness at serial No. 1 is aged 67 years and the other witness is aged 48 years and there is nothing in the affidavit making out any exceptional grounds to examine the witnesses before recording the evidence of the Plaintiffs. So it is in these circumstances that the Trial Court has considered the material placed on record and rejected the application. I do not find any error or illegality in the order impugned. In the circumstances, the writ petition is without merits and it is dismissed accordingly.

After framing the issues, the Petitioners are at liberty to file an application and in case if any exceptional grounds are made out, the Court below shall consider it and dispose of the same in accordance with law.