Patna High Court
Sri Rajiv Prakash RaiversusEstate Of Late Sita Ram Yadav and Ors
- Decided
- Disposal
- DISPOSED
- Bench
- S B P SINGH
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
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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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