Yogendra Ballabh Sharma And Others vs Radiant Infotainment Pvt.Ltd. And Others

Vivek Jain, J

By way of present petition the petitioners-plaintiffs have called into question the order dated 28-10-2025 passed by the trial Court whereby the trial Court has rejected an application under Section 151 CPC r/w Section 168 Bharatiya Sakshya Adhiniyam (for short ‘BSA’) filed by the petitioners-plaintiffs for calling the attesting witnesses of the alleged Will in favour of the petitioners-plaintiffs.

The necessary facts for the purpose of disposal of this petition are that the petitioners-plaintiff have instituted a suit against some persons including the legal representatives of deceased brother of Plaintiff No.1 seeking the relief of cancellation of sale deed and declaration of title inter alia on the basis of Will alleged to be executed by deceased mother of Plaintiff No.1 in his favour.

In the aforesaid suit, the plaintiff evidence was going on and the plaintiff declared his evidence closed on 07-04-2025 after examination and cross-examination of last plaintiff witness namely Pratap Ahirwar and Kunwar Singh were conducted. There is a specific averment mentioned in the order sheet dated 07-04-2025 that the plaintiff counsel stated that no further evidence is required to be tendered. Therefore, the Court fixed the case for defendant evidence.

Thereafter an application under Order 18 Rule 17 CPC for calling the attesting witnesses of the Will allegedly executed by mother of Plaintiff No.1 was moved on 08-10-2025 while this application was dated 13-06-2025 and an allegation was made against the counsel that the counsel had prepared the application on 13-06-2025 but filed the application after much delay on 08-10-2025. The said application was rejected by the trial Court and thereafter another application for the same purpose now under Section 151 CPC r/w Section 168 BSA was filed seeking to produce in evidence the attesting witnesses of Will of deceased mother of Plaintiff No. 1.

The counsel for the petitioner had vehemently argued before this Court that the petitioner was ill-advised by the counsel that the Will is not required to be proved by evidence of attesting witnesses and when he changed the earlier counsel then also the new counsel, though prepared the application under Order 18 Rule 17 CPC on 13-06-2025, but actually did not file the said application upto 08-10-2025 for the reasons not known to the petitioner-plaintiff and now the petitioner-plaintiff is himself contesting the suit without aid and assistance of any counsel. It is contended that under Section 168 BSA there is power on the Court to put questions to any witness or order production of any material piece of evidence. It is therefore contended that the question of validity of Will being involved in the case, therefore the trial Court should have exercised jurisdiction under Section 168 BSA by permitting the petitioner-plaintiff to produce the attesting witnesses of the Will of his mother.

Upon considering the aforesaid assertions, it is seen that on 07-04-2025 the trial Court has clearly recorded the assertion of plaintiff counsel that the plaintiff does not want to lead any further evidence and declared the plaintiff evidence as closed and the trial Court fixed the case for defendant evidence.

The plaint itself contained sufficient averments regarding the share of plaintiff no. 1 being based upon the Will executed by his deceased mother and as fairly admitted by learned senior counsel before this Court, that in the written statement, the Will has been disputed, therefore the duty was cast upon the plaintiffs being beneficiaries of Will to have proved the will in accordance with the provisions of Section 63 of Indian Succession Act.

In the application under Order 18 Rule 17 CPC which earlier suffered a rejection and in the subsequent application under Section 168 BSA r/w Section 151 C.P.C., it was contended that the defendant counsel had orally told the plaintiff counsel that the defendants do not dispute the Will and being misled by such oral assurance given by the defendant counsel, the plaintiff declared his evidence closed.

The aforesaid assertion cannot be accepted by this Court because once the suit was based on Will and then unless there was some written admission of share of the petitioners-plaintiffs on the basis of Will, there was no reason that the plaintiffs would have believed the oral assurance given by defendant counsel that the defendant would not dispute the Will and then declared the evidence closed.

There may be a number of reasons for closing the plaintiff evidence without getting the attesting witnesses of the Will examined, which this Court would not like to go into.

The petitioners-plaintiffs then filed an application under Order 18 Rule 17 CPC on 08.10.2025 in which the date of 13-06-2025 was mentioned making allegation against the counsel that the counsel did not file the application for four months. The said application was rejected on 11-10-2025 and thereafter for the same purpose by invoking another legal provision of Section 168 BSA fresh application was moved before the trial Court.

It is important to note here that the application under Order 18 Rule 17 CPC was also filed after closure of defendant evidence which was declared closed on 9-09-2025 and the case was fixed for final arguments and the application for permitting attesting witnesses of Will to be examined was filed at the stage of final arguments which was succeeded by the present application under section 168 BSA which is also at the stage of final arguments.

Learned senior counsel had vehemently argued that the trial judge in exercise of power under section 168 BSA can ask any questions which he considers necessary to a witness or from the parties. However, the learned senior counsel was not in a position to state that whether any witness which the parties in a civil case have decided not to produce can be allowed to be produced at the stage of final argument more so when the plaintiff himself had given up a witness then can the plaintiff be allowed to again seek examination of that witness after close of defendant evidence.

Such a provision can only be found in section 311 CRPC which empowers a Court to summon any person as a witness if their evidence is deemed essential for a just decision in an enquiry or trial. However, in civil trial no such corresponding provision has been engrafted by the legislature.

Even the powers could not be exercised under Section 151 CPC, as the petitioners-plaintiffs having filed suit on basis of Will, it was upon them to decide which witness to produce and they having willfully and voluntarily closed their evidence without examination of attesting witness, could not have come up at the stage of final argument with request to call the attesting witness of the Will.

Consequently, no error is found in the impugned order passed by the trial Court in rejecting the application under section 168 BSA r/w Section 151 CPC. Consequently, the petition fails and is hereby dismissed.