Rajasthan High Court - Jodhpur
Narpat Singh vs Neelam Sankhla (2025:Rj-Jd:6030) on 30 January, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:6030]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2744/2025
Narpat Singh S/o Late Shri Devi Singh Gehlot, Aged About 48
Years, Resident Of Hanuman Ji Ki Saal, Juni Bagar, Chowk,
District Jodhpur, Rajasthan.
----Petitioner
Versus
Neelam Sankhla D/o Shri Harish Chandra Shankhla, R/o Gehloto
Ka Bas, Mahamandir, Jodhpur, District Jodhpur, Rajasthan.
----Respondent
For Petitioner(s) : Mr. Himanshu Shrimali
HON'BLE MS. JUSTICE REKHA BORANA
Order
30/01/2025
1. The present writ petition has been filed aggrieved of the
order dated 18.01.2025 passed by Family Court No.2, Jodhpur
whereby the application under Order 16 Rule 1 read with Section
151, CPC as filed on behalf of the applicant stood rejected.
2. Vide the said application, a prayer was made by the applicant
to summon one Doctor Sanjay Gehlot who had treated the non-
applicant.
3. Learned Family Court rejected the application while
observing that the issues were framed in the matter on
02.08.2016 and list of witnesses was to be filed within a period of
fifteen days of the said framing of the issues and the name of the
Doctor sought to be summoned now was not a part of the said list
of witnesses. The Court further observed that on 17.02.2023, an
application as filed by non-applicant for her medical examination
was rejected. Had the applicant any intention to summon the
[2025:RJ-JD:6030] (2 of 4) [CW-2744/2025]
Doctor, he could have moved an application at that point of time
but he did not do so. Now, after the applicant's evidence having
been closed, summoning of the said witness could not be
permitted.
4. Counsel for the petitioner submits that the learned Family
Court erroneously observed that the issues were framed on
02.08.2016 whereas the issues were subsequently amended and
the amended issues were framed on 10.06.2022. After that, the
applicant's evidence commenced on 05.07.2022 and was
completed on 03.12.2024 and on the same day i.e. 03.12.2024
the present application was filed by the applicant. Counsel further
submits that on all the relevant dates, the witnesses of the
applicant were present before the Court but it was only on behalf
of the non-applicant that time was sought to cross-examine the
said witnesses. Therefore, no delay can be attributable to the
applicant.
5. Counsel further submits that the application filed on behalf of
the non-applicant as referred to by the learned Family Court was
an application for getting her medically examined and vide order
dated 17.02.2023, the learned Family Court itself observed that
the burden to prove that the non-applicant is not medically fit is
on the applicant. In view of the said finding, when the Court itself
observed that the burden was on the applicant, the present
application was rather necessitated to discharge his burden.
6. Counsel further submits that the application being filed on
the very day of the closure of the applicant's evidence, same
ought to have been allowed.
[2025:RJ-JD:6030] (3 of 4) [CW-2744/2025]
In support of his submission, counsel placed reliance on the
judgment passed by a Co-ordinate Bench of this Court in Gurjant
Singh vs. Smt. Amarjeet Kaur & Anr., S.B. Civil Writ Petition
No.13516/2017 decided on 29.06.2022.
7. Heard the counsel and perused the record.
8. It is evident on record that the application to summon
witnesses was filed by the applicant on 03.12.2024 i.e. on the
same day when the applicant's evidence was closed. Therefore,
the finding of the learned Family Court that the application was
delayed seems to be erroneous. Further, the observation of the
learned Court while relying on the order dated 17.02.2023 also
seems to be erroneous as the same could not be a reason for
rejecting the request of the applicant for summoning of a witness
who is averred to have treated the non-applicant. The same
becomes rather more relevant for the reason that the application
under Section 13 of the Hindu Marriage Act itself has been filed by
the applicant on the ground of the non-applicant being medically
unfit.
9. In view of the above, the order impugned dated 18.01.2025
is hereby set quashed and set aside. The present writ petition is
allowed while setting aside the order dated 18.01.2025. The
application under Order 16 Rule 1 CPC as filed on behalf of the
applicant is allowed.
10. The learned Family Court shall be under an obligation now to
pass appropriate orders and proceed further with the suit
proceedings.
11. The above indulgence is granted to the petitioner at a cost of
Rs.5000/-. The said cost be deposited with the learned Family
[2025:RJ-JD:6030] (4 of 4) [CW-2744/2025]
Court on the next date itself and the same be disbursed to the
defendant. If the cost is not deposited, the present order shall
cease to operate.
12. However, it is made clear that if the defendant refuses to
accept the said cost and proposes to contest the present writ
petition, it would be open for her to file an application for
restoration of the present writ petition and pray for recalling of the
present order. In that event, further proceedings in Civil Original
Suit No.59/2018 pending before the Family Court No.2, Jodhpur
shall remain stayed.
13. The present order has been passed by this Court without
issuing notices to the respondent, in exercise of extraordinary
jurisdiction under Article 226 of the Constitution of India, keeping
into consideration the fact that keeping the present petition
pending after staying the further proceedings, would be against
the interests of the contesting parties only.
14. Stay petition and pending applications, if any, stand
disposed of.
(REKHA BORANA),J
284-praveen/-
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