Despite service there is no representation for the second respondent.

2. The order of the Court below namely Principal Subordinate Judge, Erode, allowing the application to summon the original Will from another suit pending on the file of O.S. No.603 of 1999 is under challenge.

3. It was a suit filed for partition by the respondents herein alleging that the father of the plaintiff, one Kaliappa Gounder died intestate. The prime defence that was taken by the first defendant was that the said Kaliappa Gounder executed a will on 10.2.1989 and thus it was not correct on the part of the plaintiff to state that he died intestate. It is also admitted that P.W.1 was examined and the matter is part heard. At that juncture, the plaintiff/ petitioner filed on application to send for the original will filed in O.S. No.603 of 1999 alleging that the said will was written by a scriber Mr.Kandasamy and that the will dated 10.2.89 now relied on by the first defendant alleged to have been written by Kandasamy was not at all written by him and for the purpose of showing to the Court that the said will dated 10.2.1989 was not true and genuine, the said will has to be summoned to the instant suit for the purpose of cross-examination of the son of the said scribe Kandasamy. It is also admitted that the said scribe Kandasamy died and in order to prove the writing in the will dated 10.2.1989 relied on by the defence, the son of the said scribe, Kandasamy has to be examined by the defence side.

4. Learned counsel for the revision petitioner/ defendant would urge that the said application was filed under Rule 76 of the Civil Rules of Practice which is applicable only to public document and it has been already held even a registered Will is not a public document. In answer to the above contention, learned counsel for the respondent would submit that instead of Rule 75 a mistake has crept in by mentioning Rule 76. Learned counsel for the revision petitioner brought to the notice of the Court that Rule 75 is applicable to all proceedings pending in all forums except in Court and hence even under Rule 75 the document cannot be summoned. In the instant case, the duty is cast upon the first defendant/propounder of the will to prove the same in accordance with the procedure known to law.

5. The request of the plaintiff cannot be granted for two reasons. The said document what is sought to be summoned has been filed in different suit to which both the parties in the instant suit are not parties. The will what is sought to be summoned is under dispute and hence it is not a proved one. Apart from that if the request of the plaintiff side to summon the original document like a will from the other suit is ordered, this would constitute a precedent to summon any document from unconnected proceedings of unconnected third parties and the same should not be allowed.

6. Taking into consideration, the contention of the respondents side that the will relied upon by the first defendant is an unregistered document and a forged one which will disinherit the plaint totally and there might arise in occasion to disprove the writing therein, this Court has to permit the plaintiff/respondent to apply for, obtain and produce the certified xerox copy of the said will in O.S. No.603 of 1999 and to file it in the Court at the time of trial. Accordingly, the order of the Lower Court is set aside.

7. In the result, the civil revision petition is allowed, leaving the parties to bear their costs. Consequently, C.M.P. No.6706 of 2001 is closed.