Himachal Pradesh High Court
Smt. Banti Sharma And Another vs Shri Mangal Chand (Deceased) & Another on 7 May, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
CMPMO No. 417 of 2022
Decided on 07th May, 2024
.
Smt. Banti Sharma and another.
...Petitioners
Versus
Shri Mangal Chand (deceased) & another.
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting?
For the petitioners : Mr. Dibender Ghosh, Advocate.
For the respondents : Mr. V.S. Chauhan, Senior
Advocate, with Mr. Arsh
Chauhan, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioners have
challenged order dated 04.08.2022, in terms whereof, the right
of the petitioners/defendants to lead evidence, before the
learned Trial Court, stands closed.
2. Brief facts necessary for the adjudication of the
petition are that the respondents herein have filed a suit for
declaration to the effect that the suit property has been
inherited by the plaintiffs and defendant No.2, in equal shares,
1 Whether reporters of the local papers may be allowed to see the judgment?
after the death of their father on 24.06.2008 and mutation No.
292 entered in Up Muhal Shuru, Phati Prini, Kothi Jagatsukh,
Tehsil Manali, District Kullu, H.P, to the contrary is wrong,
.
illegal, void and inoperative, against the petitioners. Defendants
are contesting the suit and had put forth their response, by way
of the written statement. The grievance of the petitioners is that
in terms of the impugned order, their right to lead evidence has
been closed by the learned Trial Court, by erroneously coming
to the conclusion that more than reasonable opportunities have
been granted to them without appreciating that two
opportunities stood granted to the petitioners before the onset
of the COVID-19 and thereafter, on the first effective available
opportunity, the right of the defendants to lead evidence has
been closed.
3. Learned Counsel for the petitioners has drawn the
attention of the Court to the zimni orders appended with the
petition. He has submitted that evidence of the plaintiffs was
closed, in terms of order dated 31.10.2019, on which date, the
matter was ordered to be listed on 19.10.2019, for recording
the statement of the defendants. Thereafter, on 19.10.2019, as
no DW was present, the matter was listed for 17.02.2020. On
17.02.2020, the matter was ordered to be listed on 09.04.2020
for the said purpose, however, on account of the onset of
.
COVID-19, defendants were not able to lead any evidence and,
thereafter, time was consumed before the learned Trial Court in
the course of the adjudication of an application, filed under
Order 22, Rule 3 of the Code of Civil Procedure. He further
submitted that after the decision of the said application, which
was decided on 30.05.2022, the case was ordered to be listed
on 04.08.2022, for recording the statement of the defendants'
witnesses and it is on said date, that the impugned order has
been passed. Learned Counsel thus submitted that as this
indeed was the first effective opportunity after the COVID-19
pandemic given to the defendants to lead evidence, learned
Trial Court has erred in passing the impugned order, closing the
right of the defendants to lead evidence. Accordingly, he prayed
that the present petition be allowed and after setting aside the
impugned order, opportunity be granted to the defendants to
lead evidence.
4. Learned Senior Counsel appearing for the
respondents, while supporting the orders passed by the learned
Trial Court, has submitted that before the onset of the COVID-
19, two opportunities were given to the defendants to lead
.
evidence but neither any evidence was led by them nor any
steps were taken by them, to lead evidence. Not only this,
thereafter also, reasonable opportunities were granted to the
defendants to lead evidence, however, as the defendants failed
to do the needful, therefore, the order passed by the learned
Trial Court dated 04.08.2022 cannot be termed to be bad in
law. Learned Senior Counsel thus submitted that as there is no
merit in the present petition, the same be dismissed
5. I have heard learned Counsel for the parties and I
have also gone through the impugned order as well as the
documents appended with the petition.
6. A perusal of the zimni orders appended with the
petition demonstrates that the first date fixed for recording the
statement of D.Ws. was 19.10.2019. As on the said date,
neither any steps were taken nor any DW was otherwise
present, the Trial Court ordered the matter to be listed for the
said purpose on 17.02.2020. On this date also, the same story
was repeated and in these circumstances, learned Trial Court
ordered the matter to be listed on 09.04.2020 for recording the
statement of the D.Ws. Thereafter, on account of the onset of
.
COVID-19 pandemic, nothing could be done. The matter was
taken up by the learned Trial Court on 30.12.2020, on which
date, the matter was ordered to be listed on 06.04.2021, for
recording the statement of DWs. On the said date, the original
Counsel for both the parties were not present and joint request
was made for adjournment of the case and the Court ordered
that the matter be listed on 23.06.2021, for recording the
statement of DWs. Zimni orders demonstrate that the matter
was not listed thereafter on 23.06.2021, probably on account of
the onset of the another wave of COVID-19. The matter was
listed, thereafter, on 21.09.2021, when an application under
Order 22, Rule 3 of the Code of Civil Procedure was filed by the
plaintiff to bring on record the legal representatives of the
deceased plaintiff. This application was decided on 30.05.2022
and the Trial Court, thereafter, listed the case on 04.08.2022,
for recording the statement of D.Ws. It is on said date that the
right of the defendants to lead evidence was closed as neither
steps were taken to summon D.Ws nor any D.Ws were present.
7. This Court is the considered view that it cannot be
said that reasonable opportunities were not granted to the
.
petitioners to lead their evidence. In fact, learned Counsel for
the petitioners could not justify as to why either before the
onset of the COVID-19 pandemic or pursuant to order dated
30.05.2022, why steps were not taken by the defendants to
summon their witnesses. This demonstrates that the matter
was indeed handled by the petitioners, in a very-very callous
manner. However, after making this observation, this Court also
cannot ignore the fact that in fact after the Courts started
functioning normally post COVID-19 pandemic, it was the first
effective opportunity given for 04.08.2022 when the impugned
order was passed. Therefore, this Court is of the considered
view that interest of justice would be served in case this petition
is disposed of by setting aside order dated 04.08.2022 and
granting one opportunity to the petitioners to lead evidence,
that too on payment of cost. Ordered accordingly.
8. This petition is, therefore, disposed of by setting
aside order dated 04.08.2022 and directing the learned Trial
Court to give one opportunity to the defendants to lead
evidence. This, of course, will be subject to payment of Rs.
10,000/- by the petitioners to the respondents i.e., defendants
.
to the plaintiffs. The parties through Counsel are directed to
appear before the learned Trial Court on 27.05.2024. In the
event of cost being paid by the petitioners to the respondents
on the said date, by way of a bank draft, a date shall be fixed
by learned Trial Court for recording the statement of D.Ws. It is
made clear that if appropriate steps are not taken in terms of
the list of witnesses already filed, if any, by the defendants to
summon their witnesses or the witnesses are otherwise not
made available for recording their statements on the next date
of hearing, then no further indulgence in this regard shall be
shown to the petitioners by the learned Trial Court. Pending
miscellaneous application(s), if any also stand disposed of
accordingly.
(Ajay Mohan Goel)
Judge
May 07, 2024
(Shivank)
