Himachal Pradesh High Court
Bishan Dass vs Ram Piyari Alias Aruna And Another on 27 June, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.45 of 2023 Decided on: 27th June, 2023 .
_________________________________________________________________ Bishan Dass ....Petitioner Versus Ram Piyari alias Aruna and another . ...Respondents _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
_________________________________________________________________ For the petitioner: Mr. Naresh K. Sharma, Advocate.
For the respondents: Mr. Parav Sharma, Advocate, for respondent No.1 Mr. Sushant Vir Singh, Advocate, for respondent No.2.
Jyotsna Rewal Dua, Judge Petitioner is the defendant before the learned Trial Court. His application under Order 18 Rule 17 of Code of Civil Procedure (CPC in short) for recalling the witnesses of gift deed and Will both dated 03.02.209 has been dismissed by learned Trial Court vide order dated 23.11.2022. In these circumstances, he is before this Court.
2. Heard learned counsel for the parties and 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 27/06/2023 20:37:21 :::CIS -2-considered the case record.
3. Admitted factual position is that the respondent-
plaintiff filed a civil suit against the petitioner, inter alia, for .
declaration that she is owner in possession of the suit land and the gift deed dated 03.02.2009 was the result of fraud.
Certain other reliefs were also claimed in the civil suit. The petitioner-defendant contested the suit by filing written statement. Issues were framed on 18.05.2016. Issues No.11 and 12 read as under:-
"11. Whether the will dated 3.2.2009 executed by late Basanta is legal and valid, as alleged? ...OPD
12. Whether the gift deed dated 3.2.2009 executed by Basanta is legal and valid, as alleged? ...OPD"
4. The respondent-plaintiff concluded her evidence on 10.08.2016. The matter was fixed for evidence of the defendants. At that stage, the petitioner moved an application under Order 8 Rule 1A (3) of CPC for allowing him to produce the gift deed and the registered Will. This application was contested by the respondent-plaintiff. Vide order dated 11.12.2019, learned Trial Court allowed the application with the following observations: -
"5. I have heard learned counsel for the parties and have perused the record of the case file with care. From the record of present case, it is clear that copies of ::: Downloaded on - 27/06/2023 20:37:21 :::CIS -3- aforementioned gift deed and Will are already on record tendered by the said defendant No.1. It is evident that the present case is at the stage of defendant's evidence and the evidence has not yet closed. Bare perusal of the .
documents intended to be tendered and record shows that these documents are relied upon and are required for proper and effective adjudication in the matter in dispute. Considering the aforesaid facts, the application stands allowed and the aforesaid documents are taken on record. Application stands disposed off accordingly. after registration and completion it be tagged with the main case file."
A perusal of the above order indicates that learned Trial Court was of the view that the gift deed and the Will were already on record. The case was at the stage of recording defendant's evidence. The documents sought to be produced by the petitioner-defendant were required for proper and effective adjudication of the matter. Accordingly, the application was allowed. The matter, thereafter, was fixed for defendant's evidence for 29.04.2020. It is not in dispute that due to onset of COVID-19 Pandemic, the matter did not advance further and remained at the stage of recording defendant's evidence. On 29.04.2022, the petitioner-
defendant moved an application under Order 18 Rule 17 of CPC for recalling the witnesses of registered gift deed and Will ::: Downloaded on - 27/06/2023 20:37:21 :::CIS -4- both dated 03.02.2009. The respondent-plaintiff contested the application. Learned Trial Court vide its order dated 23.11.2022 (impugned herein) has dismissed the application.
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The dismissal is on the ground that the statements of the witnesses have already been recorded. There has been no due diligence on part of the defendant-petitioner. The documents were already in possession of the defendant-petitioner, despite this the defendant-petitioner did not produce these documents during the course of evidence. The application was an attempt to fill up the lacuna in defendant's case.
5. I am of the considered view that learned Trial Court having allowed the defendant's application under Order 8 Rule 1A(3) of CPC, vide its order dated 11.12.2019, in the interest of justice, should have allowed the present application as well. There can be no dispute about the fact that there is lack of due diligence on part of petitioner-
defendant. However, considering the fact that, the petitioner's application for producing original gift deed and Will was allowed under order dated 11.12.2019, in the attending circumstances, his prayer for recalling the witnesses of the documents should have been examined in that perspective.
::: Downloaded on - 27/06/2023 20:37:21 :::CIS -5-Petitioner's arguments carry substance that these documents are required to be put to petitioner's witnesses or else purpose of allowing the application under Order 8 Rule 1A(3) .
of CPC would become nugatory. It is not in dispute that petitioner-defendant's witnesses now intended to be recalled had been examined prior to 11.12.2019. The matter is stated to be still at the stage of recoding defendant's evidence.
For the aforesaid reasons, the impugned order dated 23.11.2022 is set aside.
r The petitioner-defendant is permitted to recall DWs 2 and 4 to 7. The recalling of the witnesses shall remain confined only for the purpose of putting the gift deed and the Will to them. No further questioning of these witnesses shall be permitted. The respondent-plaintiff will be entitled to cross-examine the witnesses in accordance with law. Since there has been lack of due diligence on part of the respondent-plaintiff, this shall be at the costs of Rs.5000/-, to the paid by the petitioner-defendant to the respondent-plaintiff. The costs shall be payable on the next date of listing before the learned Trial Court. The parties through their learned counsel are directed before the learned Trial Court on 05.07.2023.
::: Downloaded on - 27/06/2023 20:37:21 :::CIS -6-The present petition stands disposed of in the above terms alongwith pending miscellaneous application(s), if any.
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Jyotsna Rewal Dua
Judge
June 27, 2023
R.Atal
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