Altaf Khan vs Munna Kha (Died) Through Lrs (I) Akram

NEUTRAL CITATION NO. 2026:MPHC-GWL:33810
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
th
ON THE 4 OF NOVEMBER, 2026
MISC. PETITION No. 2523 of 2025
CNR No.: MPHC030121352025
ALTAF KHAN
Versus
MUNNA KHA (DIED) THROUGH LRS (I) AKRAM AND OTHERS
Appearance:
Shri Girija Shankar Sharma - Advocate for the petitioner.
Shri Madan Mohan Shrivastava - Advocate for the respondent No.1.
Shri Dilip Awasthi - Govt. Advocate for the respondent No.11/State.
ORDER
I.A. No.14567/2026 has been filed seeking dispensation with the
service of notice upon respondent Nos.2, 6, 7, 8, 9-C and 10-A to 10-F, on
the ground that, despite having been served with notices before the learned
Trial Court, they did not appear and were proceeded ex parte even before the
learned Trial Court.
The learned counsel appearing for the petitioner submits that, in the
instant petition, only respondent No.1-A, namely, Akram, is the contesting
respondent and the presence of the other respondents is not required for
adjudication of the case.
The aforesaid aspect is not disputed by the learned counsel appearing
for respondent No.1-A. Accordingly, at the risk and cost of the petitioner,
Signature Not Verified
Signed by: VANDANA
VERMA
Signing time: 05-Nov-26
10:24:30 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33810
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I.A. No.14567/2026 stands allowed. Service of notice upon the aforesaid

unserved respondents is dispensed with.
With the consent of the parties, the matter is heard finally.
1. The present Miscellaneous Petition, filed under Article 227 of the
Constitution of India, takes exception to the order dated 02.04.2025 passed
by the Second Civil Judge, Junior Division, Joura, in RCSA No.43/2020,
whereby the application preferred by the petitioner/plaintiff under Order
XXVI Rule 1 read with Section 151 of the Code of Civil Procedure, seeking
examination of the writer of the Will/witness through issuance of a
commission, has been rejected.
2. The petition also challenges the subsequent order dated
08.05.2025 passed in the same proceeding, whereby the application preferred
by the petitioner/plaintiff under Section 151 of the CPC (Annexure P/6),
seeking the same relief along with the medical document of the writer of the
Will, has also been rejected.
3. The learned counsel appearing for the petitioner submits that the
petitioner/plaintiff had filed a suit for declaration in respect of the suit
property on the basis of a Will dated 15.12.1980. During the course of trial,
the petitioner sought examination of the writer of the Will, namely, Ramratan
Nidoriya, through issuance of a local commission by filing an application
under Order XXVI Rule 1 read with Section 151 of the CPC, as the said
person was ailing and was aged about 90 years. The learned Trial Court
rejected the said application vide order dated 02.04.2025 on the ground that
no documents to evince the medical condition of Ramratan Nidoriya, the
Signature Not Verified
Signed by: VANDANA
VERMA
Signing time: 05-Nov-26
10:24:30 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33810
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writer of the Will, had been filed.

4. It is further argued by the learned counsel appearing for the
petitioner that subsequently, an application under Section 151 of the CPC
(Annexure P/6), along with the medical prescription of Shri Ramratan
Nidoriya, was filed, reviving the prayer for his examination through issuance
of a local commission. However, the learned Trial Court rejected the same
vide order dated 08.05.2025.
5. It is argued by the learned counsel appearing for the petitioner that
the only reason assigned by the learned Trial Court for rejecting the initial
questioned application was the non-filing of any medical document relating
to the said witness. He submits that, as per the record, the said witness is
aged about 90 years, which itself was a sufficient ground for allowing the
application. Nevertheless, by filing an application under Section 151 of the
CPC, the medical document of the said witness was also placed on record. In
such circumstances, one opportunity for examination of the said witness
through a local commission may be granted at the cost of the petitioner.
6. On the other hand, the learned counsel appearing for respondent
No.1-A opposes the petition and submits that the orders passed by the
learned Trial Court are just and proper and do not call for any interference. It
is further submitted that the trial of the suit is already getting delayed.
7. Heard the learned counsel for the parties and perused the record.
8. The perusal of the impugned order dated 02.04.2025 indicates that
the learned Trial Court rejected the questioned application preferred by the
petitioner seeking examination of the witness, Ramratan Nidoriya, the writer
Signature Not Verified
Signed by: VANDANA
VERMA
Signing time: 05-Nov-26
10:24:30 AM

NEUTRAL CITATION NO. 2026:MPHC-GWL:33810
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of the Will, on the ground that no document evincing his health condition

had been filed. The subsequent document placed on record as Annexure P/7
indicates that the said witness was aged about 90 years as on the date of the
document. In the considered opinion of this Court, the interest of justice
would be served in case one opportunity is granted to the petitioner to
examine the said witness through issuance of a local commission.
9. Accordingly, the impugned orders dated 02.04.2025 and
08.05.2025 are hereby set aside. The learned Trial Court shall afford one
opportunity to the petitioner for examination of the writer of the Will,
namely, Ramratan Nidoriya, through issuance of a local commission, at the
cost of the petitioner. The said exercise shall be completed within a period of
four weeks from the date of production of a certified copy of this order
before the learned Trial Court. Let an appropriate order in this regard be
passed by the learned Trial Court within the aforesaid period.
10. Accordingly, the petition stands allowed and disposed of in the
above terms.
(AMIT SETH)
JUDGE
Van
Signature Not Verified
Signed by: VANDANA
VERMA
Signing time: 05-Nov-26
10:24:30 AM