Rajasthan High Court - Jaipur
Smt Shimla Devi vs Heeralal And Ors on 3 July, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.2509/2017
Smt. Shimla Devi, W/o Devi Shankar Sharma, Adopted D/o Late
Ram Prasad, B/c Brahmin, aged 55 years, resident of Hindon
City, At Present Resident Of 2530, Khajanawalon Ka Rasta,
Chokadi Topkhana Desh, Jaipur.
----Plaintiff-Petitioner
Versus
1. Heeralal S/o Late Champalal
2. Chhaganlal S/o Late Champalal "deceased"
2/1 Premlata Sharma Aged 49 Years, D/o Chhaganlal,
W/o Mahesh Chand Sharma,
2/2 Smt. Sunita Sharma, aged 47 years, D/o Chhaganlal,
W/o Vimal
2/3 Smt.Sushila @ Vittu, aged 44 years, D/o Chhaganlal
W/o Mahesh
2/4 Madan, aged 42 years, S/o Chhaganlal
2/5 Nandkishore, aged 54 years S/o Chhaganlal
2/6 Ratan, aged 79 years, Widow of Chhaganlal
All B/c Brahmin, Residents of 32 Tatkaleshwar Puri, Near
Adarsh Vidyamandir, Near Gandhi Circle, Hirdiki Mori,
Ramganj, Jaipur
3. Kalu Ram, S/o Late Champalal, B/c Brahmin (deceased)
3/1 Rajendra @ Raju S/o Kaluram, Brahmin, At Present
resident of House No.67, Opp. Rajesh Koch, Behind Nathu
Sarpanch, Sharma Colony, Opp. Old Ramdev, Kanota,
Jaipur
3/2 Smt. Geeta Devi Widow of Kaluram, b/c Brahmin,
resident of 2995 Thakurji Basruwalon ka Rasta, Jodhasa
Ki Popli, 2nd Chouraha, Chandpole Bazar, Jaipur
3/3 Smt. Mamta @ Mem, D/o Kaluram, W/o Vishnuji
Chakkiwale, Behind Nayi Paani Ki Tanki, Uttardas Mohalla,
Surajgarh, Pirawa
3/4 Smt. Lalita @ Seth, D/o Kaluram, W/o Gowrishankar,
b/c Brahmin, resident of House no.67, Opp. Rajesh Koch
Behind Nathu Sarpanch, Sharma, Colony, Opp. Old
Ramdevji, Kanota Dist. Jaipur.
3/5 Smt.Sunita, D/o Kaluram W/o Pt.Gangalahri, b/c
(2 of 6) [CW-2509/2017]
Brahmin, resident of Manbam, Super Bazar, Laxmi
Bhandar (Laxmi Properties), Khor, Dist. Jaipur
4. Banwarilal, S/o Late Champalal, B/c Brahmin
5. Bijendra S/o Late Champalal, B/c Brahmin (deceased)
5/1 Sita, Aged 64 Years, Widow Of Bijendra, Resident of
Plot No.52, Jagdamba Colony, Paldi Meena, Opp.Rajesh
Koch, Agra Road, Jaipur
5/2 Kamlesh, aged 39 years, S/o Bijendra, Plot No.52
Jagdamba Colony, Paldi Meena, Opp. Rajesh Koch, Agra
Road, Jaipur
5/3. Kokila, aged 41 years, D/o Bijendra, W/o Gopal b/c
Brahmin, resident of Lal Doongri Ganeshji Ka Mandir,
Galta Gate, Jaipur
5/4 Bharti Sharma, aged 37 years, D/o Bijendra Widow of
Harish Chandra Sharma, resident of Plot No.2143, Gulji
Dhabai Ki Gali, Gangauri Bazar, Jaipur
6. Babulal, S/o Late Champalal B/c Brahmin,
All Residents Of Vill. Hindon City, At Present Resident Of
2995 Thakurji Bagruwalon Ka Rasta, Chandpole Bazar,
Jaipur
7. Ramavatar, S/o Late Champalal B/c Brahmin, Alamshahur
Hanumanji Ki Bagichi, New Anaj Mandi, Opp. Vishwanath
Petrol Pump, Station Road, Hindon City
8. Rajesh S/o Late Champalal, B/c Brahmin
9. Deepak S/o Late Mohanlal B/c Brahmin
10. Lalli Bai, D/o Late Champalal B/c Brahmin, Resident of
Vill. Dagarwada, Tehsil Jamwaramgarh, Dist. Jaipur
11. State Of Rajasthan through Chief Secretary, Secretariat,
Jaipur
12. Tehsildar (Land Record) Cum Sub Registrar, Tehsil Hindon
City, Dist. Karauli
----Respondents
For Petitioner(s) : Mr.Anoop Dhand
For Respondent(s) : Mr.Vijay Pathak
HON'BLE MR. JUSTICE ALOK SHARMA
Order
(3 of 6) [CW-2509/2017]
03/07/2018
Matter comes up on an application under Article 226(3) of the Constitution of India for vacation of the ex-parte interim order dated 19.2.2018 passed by the Court. Therein the Court while issuing notices to the respondents and directing the matter to be listed on 21st March, 2018, and had also in meanwhile stayed the further proceedings in the suit for injunction before the Trial Court.
Mr.Anoop Dhand, counsel for the petitioner-plaintiff (hereinafter 'plaintiff') submits that the suit for injunction is based on a declaration in writing of the deed dated 29.10.1976 which was executed by one Champalal her grand father, and attested by one Nandlal and one Girriraj. He submitted that Champalal the executor of the writing deed dated 29.10.1976 in issue as also the attesting witness, both Nandlal and Girriraj have since expired. The evidence of the plaintiff's was closed on 4.6.2016. An application under Order 17 Rule 2 and 3 CPC was then moved before the Trial Court on 08.12.2016 for permitting to take on record the evidence of grand-sons of Nandal and Girriraj for the (4 of 6) [CW-2509/2017] plaintiff. It was submitted that vide order dated 27.1.2017 the said application was however cursorily rejected by the Trial Court without regard to the justice of the case, in an irregular exercise of the trial court's jurisdiction. Counsel for the plaintiff further submits that the closure of the plaintiff's evidence on 4.6.2016 in the underlying suit was also wholly unjustified and is therefore unsustainable. Hence both the orders dated 4.6.2016 and 27.1.2017 deserve to be quashed and set aside and be so.
Mr.Vijay Pathak counsel for the respondent-defendant No.7 (hereinafter 'defendant') submits that the underlying suit for injunction at the plaintiff's instance was filed in the year 2002. The plaintiff's evidence carried for over a period of 14 years and it was closed on 4.6.2016 without any serious demur or objection from the plaintiff. It was submitted that subsequently while the matter was thereafter in defence evidence, an application was moved as if on second mind as an afterthought on 08.12.2016 for permitting the plaintiff to bring the evidence of the grandsons of Nandlal and Girriraj. The Trial Court in the circumstances has rightly exercised its discretion both for reason of delay and the said witnesses being (5 of 6) [CW-2509/2017] an afterthought while dismissing the plaintiff's application vide impugned order dated 27.1.2017. He submitted that the plaintiff evidence having earlier been concluded the evidence, was rightly closed on 4.6.2016. Neither of the two orders impugned suffer from any illegality or perversity but are reflective of the Trial Court's discretion judiciously exercised in the facts of the case.
Heard. Considered.
The underlying suit for injunction was admittedly filed in the year 2002. The plaintiff's evidence was closed on 4.6.2016 after several years had lapsed. Nothing illegal or arbitrary can be attributed to such an order which could warrant interference of this Court under Article 227 of the Constitution of India. Thereafter when the suit was at the stage of evidence of the defendant, an application was moved by the plaintiff on 8.12.2016 to bring in his evidence of two other witnesses who neither were in his list of witnesses and who were not produced before the Trial Court for over a decade during which the plaintiff's evidence was open. The trial court has in the circumstances rightly dismissed the said application filed at the instance of plaintiff. The ex-parte (6 of 6) [CW-2509/2017] interim order dated 19.2.2018 in this petition therefore, deserves on the facts of the case to be quashed and set aside.
That having been done, I find that the present writ petition under Article 227 of the Constitution of India also cannot sustain for the very same reason set out for vacation of the ex- parte interim order dated 19.2.2018.
The petition is dismissed.
It has been noted in the course of arguments that in the meantime the defence evidence of the plaintiff's has been concluded and the matter is pending for final arguments before the Trial Court since 4.10.2017. The aforesaid suit for injunction was filed in the year 2002. Sixteen years have already lapsed. Pendency of the suit is a drain on time and money of the defendant's. In the circumstances the Trial Court is directed to dispose of the suit within a period of 12 months from the date of presentation of a certified copy of this order.
(ALOK SHARMA), J Himanshu/1 Powered by TCPDF (www.tcpdf.org)