Allowed

Shera v. Faquir Chand

Himachal Pradesh HC7 May 2013CMPMO/386/2012

Case brief

AI extract

What is this about?

This is a within-writ petition challenging an order of Civil Judge, Nalagarh, regarding a suit for joint possession. The High Court held that issues of limitation, estoppel, and maintainability are factual requiring evidence, and set aside the trial court's order to allow the plaintiff to lead rebuttal evidence on these issues.

What did the court decide?

Impugned order dismissed and trial court directed to allow petitioner to lead rebuttal evidence on issues of limitation, estoppel, cause of action, and maintainability.

Shera Vs Faquir Chand — Partition | Himachal Pradesh HC (2013)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.386 of 2012.

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Date of decision: 07.05.2013.

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Shera. ….Petitioner/Plaintiff.

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Versus

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Faquir Chand & others.

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….Respondent/Defendant/ Proforma respondents.

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Coram

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The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr.Ramakant Sharma, Advocate.

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For the Respondents : Mr. Sanjeev Kuthiala, Advocate, for respondent No.1.

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Kuldip Singh, Judge (Oral).

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This petition is directed against the order dated 15.10.2012 passed by learned Civil Judge(Senior Division), Nalagarh, in Civil Suit No.240/1 of 2007. The petitioner has filed a suit for declaration with consequential relief of injunction and joint possession. It is not necessary to give full pleadings in view of order which I intend to pass in the petition. On the pleadings of the parties, the following issues were framed by the trial Court on 03.05.2010:-

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Whether the relinquishment deed dated 22.9.1995 is sham, fictitious transaction and wrong, illegal, null and void, as alleged? OPP.

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Whether the plaintiff is entitled for permanent prohibitory injunction, as prayed for? OPP.

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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Whether in the alternative, the plaintiff is entitled for joint possession, as alleged: OPP.

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Whether the suit is not maintainable, as alleged? OPD.

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Whether the suit is time barred, as alleged? OPD.

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Whether the plaintiff is estopped to file the suit, as alleged? OPD.

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Whether the plaintiff has no legally enforceable cause of action to file the suit, as alleged? OPD.

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Relief.

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The petitioner led evidence and his evidence was closed on 03.06.2011. The defendant No.1 also led evidence and his evidence was closed on 17.09.2012. The petitioner moved an application for permission to lead rebuttal evidence wherein he has stated that he wants to lead evidence in rebuttal on relinquishment deed dated 22.09.1995. He also stated that he had closed the evidence in affirmative and has right to lead rebuttal evidence.

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This application was opposed by respondent No.1. The learned trial Court dismissed the application on the ground that the onus of issue No.1 was on petitioner, he has already led evidence, therefore, he cannot be permitted to lead evidence on relinquishment deed dated 22.09.1995. The petitioner in the application has also stated that he wants to lead evidence in rebuttal. The onus of issues No.4 to 7 is on defendant.

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The learned counsel for respondent No.1 has stated that issues No.4 to 7 are only legal issues and no rebuttal evidence is required on these issues. This contention is noted only to be rejected. The issues of limitation, estoppel, cause of action and maintainability depending on the pleadings are also issues of facts which require evidence. The learned trial Court has not considered in the impugned

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order whether petitioner has a right to lead rebuttal evidence on issues No.4 to 7. On this ground alone, the impugned order is not sustainable and is accordingly set aside. The petitioner is permitted to lead evidence in rebuttal on issues No.4 to 7 only. The petition is disposed of, so also the pending application, if any. The parties through their counsel are directed to appear before the trial Court on 28.05.2013.

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May 7, 2013. ( Kuldip Singh), (krt) Judge.

Shera v. Faquir Chand

Case brief

What is this about?

What did the court decide?

Shera v. Faquir Chand

Case brief

What is this about?

What did the court decide?

What the court decided

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