Himachal Pradesh High Court
Anita Beri vs Rakesh Mohindra & Others on 3 August, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 276 of 2016 .
Decided on : 03.08.2018
Anita Beri .....Petitioner.
Versus
Rakesh Mohindra & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. S.D. Vasudeva Senior Advocate with Mr. Sanjay Dutt Vasudeva, Advocate.
For the Respondents: Mr. P.S. Goverdhan, Advocate.
Sureshwar Thakur, J (oral) The plaintiff No. 2/petitioner, herein alongwith another another plaintiff, namely, Smt. Anita Sood, has filed a civil suit before the learned Trial Court, for, rendition of a decree of declaration against the defendants/respondents No. 1 & 2, herein, and vizaviz the suit property. Apparently, the suit has progressed up to the stage of recording of defendants' evidence, on, the relevant issues.
1Whether reporters of the local papers may be allowed to see the judgment?
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2. The learned Counsel appearing for the defendants .
contended qua extantly, the learned trial Judge, rather permitting the defendants, to, adduce evidence on the relevant issues. However, before the defendants could proceed to take the necessary steps for adducing their evidence on the relevant issues, they, preferred an application, cast under the provisions of Section 151 of the Code of Civil Procedure, whereunder they sought leave of the Court, to amend the affidavit instituted, on 24.06.2014, before the learned trial Court, for theirs' hence making averments therein, rather bearing consonance with the verdict pronounced by the Hon'ble Apex Court upon S.L.P No. 29621/2014. The learned trial Judge had accepted the contention of the learned Counsel, for the defendants, and, had proceeded to allow the aforesaid application. The petitioner, being aggrieved therefrom, has hence motioned this Court through the instant petition.
3 The learned Counsel for the appearing parties have been heard, at length.
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4. The reasons, as assigned by the learned trial .
Judge, in making an affirmative order, upon, the apposite application, is, grooved in the aforereared contention cast in the apposite application, besides is grooved in the factum that with the relevant affidavit, in respect whereof, an amendment was concerted, being not, standing yet, tendered into evidence, by the witnesses concerned hence stepping into the witness box, thereupon rather, with it merely existing on file, concomitantly, it being permissible, for him to proceed to allow the application. Apparently, the learned Trial Judge has anchored his reasonings, upon, the mandate borne in Order XVIII Rule 4 ,1(c) of CPC, provisions whereof stand extracted hereinafter.
"A party shall however have the right to withdraw any of the affidavits so filed at any time prior to commencement of cross examination of that witness, without any adverse inference being drawn based on such withdrawal:::: Downloaded on - 07/08/2018 23:01:33 :::HCHP
...4...
PROVIDED that any other party will be entitled .
to tender as evidence and rely upon any admission made in such withdrawn affidavit.]"
5. However, any dependence thereupon, by the learned trial Judge is blatantly fallacious, as, even thereunder, a, mere liberty is afforded to the litigant r to concerned, to, seek permission to withdraw, any, of the affidavit(s), as, may be instituted, permission whereof, being afordable only prior to the commencement of cross examination of the witnesses' concerned, yet no statutory empowerment, is, bestowed upon Courts, to, permit any amendments therein. Consequently, the aforesaid provision also does not bear out, the reason assigned by the the learned trial Judge, in his, making an affirmative order upon the defendant's application. In sequel, the reason assigned by the learned trial Judge, is, perverse, and, requires it being quashed and set aside. However, the defendants are at liberty to make an appropriate application in accordance with law, before the learned trial Judge, for the relevant purpose.
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In view of the above, the petition is allowed. Pending .
applications, if any also stand disposed of.
3rd August, 2018 ( Sureshwar Thakur ),
(priti/hemlata) Judge.
r to
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