Unknown vs State Of H.P. And Another
2022 Latest Caselaw 9514 HP

                                                  1
     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                         CMP No. 15639 of 2019 & RSA No. 329
                         of 2022
                         Date of Decision: 18.11.2022
_________________________________________________________
Bhagdassi                                  ....Appellant.




                                                                                                       .

                                                             Vs.
State of H.P. and another                                                                 .....Respondents.





Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1





For the applicant/appellant:                                 Mr. G.R. Palsra, Advocate.

For the non-applicants/
respondents:                                                 Mr. Sumesh Raj and Dinesh Thakur,
                                                             Additional Advocate Generals, with Mr.
                                     r                       Amit Kumar Dhumal, Deputy Advocate

                                                             General.
Ajay Mohan Goel, Judge (Oral):

CMP No. 15639 of 2019

Having heard learned counsel for the applicant/appellant

and after going through the averments made in the application, the same is

allowed and the applicant/appellant is permitted to file the appeal before this

Court as an indigent person against the judgment and decree, dated

31.08.2019, passed by the Court of learned Additional District Judge-1,

Mandi, District Mandi, H.P. The application stands disposed of.

RSA No. 329 of 2022

2. Be registered.

1 Whether the reporters of the local papers may be allowed to see the Judgment?

3. By way of this appeal, the appellant has challenged judgment

and decree dated 31.08.2019, passed by the Court of learned Additional

District Judge-1, Mandi, District Mandi, H.P. in Civil Appeal No. 13 of 2019,

titled as State of H.P. and another Vs. Smt. Bhagdassi, in terms whereof, the

.

suit for declaration and recovery filed by the appellant, which was decreed

by the Court of learned Civil Judge (Junior Division), Court No. III, Mandi,

District Mandi, H.P. vide judgment and decree dated 30.11.2017, passed in

Civil Suit No. 207/17/2014, titled as Bhagdassi Vs. The State of H.P. and

another has been dismissed.

4. Learned counsel for the appellant has argued that as the factum

of Will having been executed in favour of the appellant by deceased- Prem

Bahadur was not assailed by anyone either before the learned Trial Court or

before the learned First Appellate Court, the First Appellate Court has erred

in holding that the Will was not duly proved before the learned Trial Court.

Accordingly, he submitted that the judgment and decree passed by the

learned Trial Court be upheld and the judgment and decree passed by the

learned First Appellate Court be set aside.

5. On the other hand, learned Additional Advocate General has

submitted that there is no perversity with the judgment and decree passed

by the learned First Appellate Court, as it has rightly set aside the judgment

and decree passed by the learned Trial Court, which was apparently against

the settled principles of law. Learned Additional Advocate General, while

drawing the attention of the Court to the findings returned by both the learned

Courts below has submitted that once the factum of Will not having been

proved as per law before the learned Trial Court was ignored by the said

Court, then where was the occasion for anyone to challenge the Will when

the plaintiff did not implead either the legal heirs/legal representatives of the

executor of the Will or the General Public as a party defendant in the Civil

.

Suit.

6. Faced with this situation, learned counsel for the appellant

submits that it will be in the interest of justice in case the appellant is

permitted to withdraw the Civil Suit itself, with liberty to seek the probate of

the Will in issue. This submission is not opposed by the learned Additional

Advocate General. r

7. Accordingly, this Regular Second Appeal is disposed of by

permitting the appellant/plaintiff to withdraw the Civil Suit itself, result

whereof is that the judgments and decrees passed by both the learned

Courts below thereupon shall stand rendered otiose. Appellant is at liberty

to seek probate of the Will as per law. Miscellaneous applications, if any, also

stand disposed of.

(Ajay Mohan Goel) Judge November 18, 2022

(bhupender)