Jammu & Kashmir High Court
Utkarsh Mahajan & Ors vs Dayalbagh Radhasoami Satsang on 17 April, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Sr. No. 05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 66/2023
CM No. 2204/2023
Utkarsh Mahajan & ors. .... Petitioner/Appellant(s)
Through:- Mr. K. D. S. Kotwal, Advocate
V/s
Dayalbagh Radhasoami Satsang .....Respondent(s)
Through:-
CORAM : HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
The present petition has been preferred by the petitioners under Article-227 of the Constitution of India in which the petitioners have called in question the order dated 09.03.2023 passed in File No. 39/Execution in case titled Dayal Bagh Radhasoami vs. Vipan Kumar.
The petitioners in the present petition are aggrieved of the order dated 09.03.2023 whereby the learned Court below has closed the right to lead evidence of the defendant without operating the list of witnesses produced by the defendant in a civil suit for ejectment which is pending adjudication before the Court of learned City Judge, Jammu in which the petitioners herein are the legal representatives of the deceased defendant i.e., Late Sh. Vipin Gupta.
The specific case of the petitioners is that the learned Court below by virtue of the order dated 06.08.2011 was pleased to frame the issues in the matter and the parties were directed to file their list of witnesses which was 2 submitted by the defendant on 18.04.2011 which was also taken on record and the petitioners were also directed to deposit the diet expenses for the witnesses. It is the specific case of the petitioners that the defendant/husband of the petitioner deposited an amount of Rs. 3,150/- on account of witnesses' expenses on 19.04.2011. The plaintiff led evidence and thereafter the defendant (petitioners herein) was to lead evidence but the learned Court below, by virtue of order dated 09.03.2023, was pleased to negate the list of witnesses submitted by the defendant completely.
Mr. K. D. S. Kotwal, learned counsel appearing on behalf of the petitioners submits that the order impugned is absolute perverse in law as the learned Court below has failed to appreciate that the petitioners had already produced the list of witnesses which were under their control and since the petitioners were not in a position to secure the presence of the witnesses, they were required to be summoned through the process of the Court. Learned counsel further submits that the learned Court below could not have closed the right of the petitioners as the witnesses were required to be summoned through the process of the Court, for which, the petitioners had already deposited the diet expenses in the year 2011 and no objection was made by the other side at any stage.
Learned counsel has vehemently argued that the right of the defendant to lead the evidence has been closed in light of the order impugned and accordingly, grave prejudice has been caused to the defendant/petitioners herein by passing the aforesaid order impugned in the present petition. 3
With a view to fortify his claim, Mr. Kotwal, learned counsel appearing on behalf of the petitioners, has relied upon a judgment of the Coordinate Bench of this Court reported as 2001 SLJ 178 titled Sadotra Joinery Works, Udhampur versus Parkash & Co. Para-4 of the judgment is reproduced as under:-
"4. The ratio is that where a party has furnished the list, deposited the expenses and process fee in terms of Rule 1, the court has the obligation to summon the witnesses and take steps to ensure their presence in case of disobedience. This obligation has not been dis-charged in this case before calling upon the petitioners to serve them by taking dasti summons. The order impugned is thus contrary to the law. The petition as such is allowed and the order impugned is set aside. Parties through their counsel to appear in the trial court on 30.09.1999."
Heard learned counsel appearing on behalf of the petitioners at length and perused the record.
Prima facie case for indulgence is made out.
Issue notice to the respondents in the main petition as well as application. Requisite steps for service within one week.
Subject to petitioners taking steps, Registry to issue notice to the respondents, returnable within four weeks.
List on 12.06.2023.
Meanwhile, subject to objections and till next date of hearing before the Bench, order impugned dated 09.03.2023 passed in File No. 39/Execution in case titled Dayal Bagh Radhasoami vs. Vipan Kumar by learned City Judge, Jammu, shall remain stayed. Alteration/modification on laying motion.
(Wasim Sadiq Nargal) Judge JAMMU 17.04.2023 RAM MURTI