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Patna High Court

Sri Rajiv Prakash RaiversusEstate Of Late Sita Ram Yadav and Ors

Decided
Disposal
DISPOSED

Holding

The order expunging the witnesses’ testimony is set aside, and the petitioner is permitted to produce the witnesses for cross‑examination.

Summary

The petitioner filed a civil miscellaneous application seeking to set aside an order dated 7 June 2017 that had expunged the testimony of two witnesses, Raj Kumar Jaishwal and Sanjay Kumar, in a probate suit (Suit No. 10 of 2006, arising from probate case No. 46 of 1993). The order was based on the witnesses not being produced for cross‑examination. The petitioner argued that the witnesses were residing outside the State at the relevant time, which prevented their earlier production, and now offered to produce them within a month for cross‑examination. The court accepted that the witnesses’ testimony was material as identifiers of the will and that their absence was due to a valid reason. Consequently, the court set aside the impugned order, granted the petitioner permission to produce the witnesses, and ordered the petitioner to pay costs of Rs 1,000 to the opposite party.

Issues considered

  • The propriety of expunging witness testimony when the witnesses could not be produced earlier due to being out of state.
  • Whether the court can set aside its earlier order and allow the late production of witnesses for cross‑examination in a probate proceeding.

Subjects

  • probate
  • witness production
  • cross‑examination
  • civil miscellaneous application
  • setting aside order

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                        CIVIL MISCELLANEOUS JURISDICTION No.1300 of 2017
                  ======================================================
                  Sri Rajiv Prakash Rai S/o late Sita Ram Yadav Resident of Mohalla Guzari
                  Bazar, Ashok Raj Path, Opposite of Oriental College, P.S. Khajkalan in the
                  town and District of Patna, Pin Code No. 800008.
                                                                            ... ... Petitioner/s
                                                     Versus
            1.     Estate Of Late Sita Ram Yadav and Ors Son of late Moti Lal Resident of
                   Mohalla- Guzari Bazar, P.O. Patna City, P.S. Khajekalan town and District
                   Patna.
            2.    Sri Suresh ageda about 67 years S/o late Sita Ram Yadav Resident of
                  Mohalla- Guzari Bazar, P.S. Khajekalan in the town and District Patna.
            3.    Aakash Rai aged about 35 years null
            4.    Suraj Prakash Rai aged about 32 years Both Sons of Sri Suresh Kumar All
                  Resident of Mohalla- Guzari Bazar, P.S. Khajekalan in the town and District
                  Patna Pin Code No 800008
            5.    Smt. Lali Devi aged about 65 years W/o Surendra Kumar Chandra and D/o
                  late Sita Ram Yadav Resident of Mohalla Bajrang Puri, P.S. Alamganj, Pin
                  Code No. 800007, in the town and district of Patna.
            6.    Smt. Bibha Rani @ Kiran Devi aged about 53 years W/o Sri Nand Kishore
                  Prasad and D/o late Sita Ram Yadav Resident of Mohalla Chak Pitampur,
                  vikhuaa, P.S. Fatwah in the district of Patna at present residing at Shiroor
                  Railway Station , P.O. Shiroor Talukkundu Pura, District Odupi , Pin Code
                  576228 in the state of Karnatak.
            7.     Smt. Madhuwala aged about 49 years W/o Rakesh Kumar D/o late Sita Ram
                   Yadav Resident of Village- Bhawanpur, P.O. Fathehpur, P.S. Avatar Nagara,
                   District Chhapra Saran, Pin code - 841202.
                                                                          ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Petitioner/s   :      Mr.Ashok Kumar
                  For the Respondent/s   :      Mr.
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
                                        ORAL ORDER

12   06-01-2026                 The present Civil Miscellaneous application has been

                    filed for setting aside the order dated 07.06.2017 passed in Titile

                    Suit No. 10 of 2006 arising out of probate case no. 46 of 1993 by

                    which the evidence of P.W. no. 2 and P.W. no. 3 namely Raj

                    Kumar Jaishwal and Sanjay Kumar respectively was expunged

                    due to non producing them for cross-examination by the opposite
          Patna High Court C.Misc. No.1300 of 2017(12) dt.06-01-2026
                                                       2/2




                    party.

                                 2. During the course of arguments, learned counsel for

                    the petitioner submits that both the witnesses were residing

                    outside the State for their livelihood at the relevant time and,

                    therefore, they could not be produced earlier for valid reasons. It

                    is further submitted that the petitioner is now ready to produce

                    both witnesses within a period of one month for their cross-

                    examination by the opposite party. Their cross-examination is

                    necessary for the proper and complete adjudication of the case.

                                 3. Keeping in view the aforesaid facts and the

                    submissions made by learned counsel for the petitioner, the

                    impugned order is set aside and an opportunity is granted to the

                    petitioner to produce the aforesaid two witnesses, who are the

                    identifiers of the Will, for their cross-examination by the opposite

                    party.

                                 4. Accordingly, the instant application stands allowed,

                    subject to payment of costs of ₹1,000/- (Rupees One Thousand

                    only) by the petitioner to the opposite party.



                                                (S. B. Pd. Singh, J)
Ankit Kumar/-

U


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