Jammu & Kashmir High Court
Naveen Chander vs Ram Nath on 17 October, 2024
Author: Puneet Gupta
Bench: Puneet Gupta
Serial No. 1
Supplementary
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
Pronounced on : 17.10.2024
Case No: CM (M) No. 101/2024
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Naveen Chander, aged 63 years,
S/o Late Sh. Kewal Krishan,
R/o Ward No. 14, Tehsil and
District Kathua-184101. ...Petitioner(s)..
Through :- Mr. Rahul Sharma, Advocate.
Vs
Ram Nath, aged 55 years,
S/o Late Sh. Kewal Krishan
R/o Ward No. 14, Tehsil and
District, Kathua-184101. .....Respondent(s)..
Through:- Mr. Ved Bhushan Gupta,
Advocate with Mr. Rahul Aggarwal,
Advocate.
Coram : HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The petitioner-plaintiff is aggrieved of the order dated 20.07.2022 and
order dated 13.12.2023 passed by the court of learned Civil Judge
(Sr. Division) CJM, Kathua whereby the learned court has closed the
right of the petitioner to lead evidence and the application to deposit the
diet expenses on the ground that the evidence of the plaintiff already
stood closed vide order dated 20.07.2022. It is submitted that in the suit
filed by the petitioner, the issues were framed on 19.07.2010 and the issue
No.1 which was treated as preliminary issue was decided by the trial
court vide order dated 12.11.2010. The petitioner was directed to file list
of witnesses within a period of 15 days by the same order. It is further
submitted that the petitioner had already filed application for deposit of
witness expenses on 16.09.2010. It is also submitted that the file of the
trial court was summoned by this Court in Civil Revision No. 133/2010
and in the revision petition the original record summoned by this court
was later on directed to be sent back to the trial court. The petitioner
contends that due to COVID 19 restrictions and the confusion that
occurred to the petitioner due to another suit pending between the parties
before the said court and the dates given in those suits led to non-
examination of the witnesses by the petitioner. It is also submitted that the
application filed by the petitioner on 16.09.2010 wherein he had given list
of witnesses and intended to deposit the expenses of the witnesses
remains pending with the trial court. The petitioner has been deprived of
his right to lead evidence by virtue of impugned order is the precise
submission of the learned counsel for the petitioner.
2. Mr. Ved Bhushan Gupta, learned counsel appearing for the respondents
has argued that no case is made out by the petitioner for allowing him to
lead evidence in support of his case in view of the facts of the case. It is
submitted that even if the contention of the petitioner is to be accepted the
petitioner has not done his part and there is a delay which is not
satisfactorily explained by the petitioner. The petitioner failed to deposit
the expenses for fairly long time or produce the evidence otherwise in the
suit.
3. The Court has been taken through the various orders by the counsels for
both the sides in support of respective contentions.
4. The suit though pending for the last more than fourteen years yet for one
reason or another is still at the initial stage. There may be some lapse on
the part of the petitioner-plaintiff in pursuing his suit diligently. However,
the petitioner need not be deprived of his right to further pursue the suit
effectively against the respondent-defendant.
5. The Court is of the view that the overall circumstances that emerge out of
the proceedings of the trial court do make out a case for granting relief in
favour of the petitioner. The party cannot be made to suffer for every
default made by the party and face extreme consequences such as
depriving him of leading evidence more so when the case is still at its
infancy and has not progressed to the extent it should have by now. The
non-compliance to the procedural mandate as designed in Code of Civil
Procedure should not in all circumstances cause hardship to the party. The
petitioner is entitled to the relief in the following terms set forthwith by
the Court.
6. Accordingly, the impugned orders are set aside. The petitioner is allowed
to lead evidence in support of his case. The petitioner shall deposit the
witness expenses within a period of fifteen days from today of only those
witnesses which he cannot produce of his own. The trial court can also
dispense with the examination of any witness mentioned in the original
application if it finds so necessary. The petition is, however, allowed
subject to payment of Rs.3000/- as costs to be paid by the petitioner to the
respondent within a period of fifteen days from today. The parties shall
appear before the trial court on 06.11.2024.
(PUNEET GUPTA)
JUDGE
Jammu:
17.10.2024
Pawan Chopra
Whether the Judgment is speaking? Yes/No
Whether the Judgment is reportable? Yes/No
