Quashed

Bharat Sanchar Nigam Ltd. v. Municipal Corporation Shimla

Himachal Pradesh HC25 Jul 2017CMPMO/238/2017

Case brief

AI extract

What is this about?

The High Court allowed a revision petition under Article 227, setting aside an order dismissing a civil suit for failure to produce witnesses. The court found the delay was due to unavoidable circumstances like a general meeting and office inundation, granting a fresh opportunity for evidence.

What did the court decide?

Impugned order dated 20.4.2017 set aside; fresh date fixed for plaintiff's evidence.

Bharat Sanchar Nigam Ltd. Vs… — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.238 of 2017. Decided on: 25^th July, 2017.

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Bharat Sanchar Nigam Ltd; ...Petitioner. Versus Municipal Corporation, Shimla & anr. …Respondents.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

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Whether approved for reporting?¹ No.

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For the petitioner : Mr. Navlesh Verma, Advocate.

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For the respondents : Mr. Hamender Chandel, Advocate, for respondent No.1. Mr. Pradeep Kumar Sharma, Advocate, for respondent No.2.

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Chander Bhusan Barowalia, Judge (oral)

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The present petition under Article 227 of the Constitution of India, has been maintained by the petitioner for setting aside the impugned order, dated 20.4.2017, passed by the learned Civil Judge (Senior Division) Court No.1, Shimla, in Civil Suit No.44-1 of 2011, wherein suit of the petitioner/plaintiff/BSNL, (hereinafter referred to as ‘plaintiff’) was dismissed for want of taking steps for producing the witnesses.

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Brief facts giving rise to the present petition are that plaintiff maintained a Civil Suit for grant of decree of Permanent Prohibitory Injunction restraining the

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respondents/defendants (hereinafter referred to as ‘defendants’)

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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from interfering in the peaceful possession of the plaintiff in the leased premises, in which, office of the plaintiff/BSNL with mobile tower is functioning. The learned Court below, vide its order, dated 20.4.2017, dismissed the Civil Suit for want of taking steps for producing the witnesses. It is averred in the petition that, on that day, there was a general house of District Bar Association. Two witnesses were present alongwith the plaintiff, who had to leave on account of a meeting at level of the Nigam Officers. There had been many indications of mutual settlements between the parties and the matter was kept in Lok Adalat, for presence of parties on many occasions. The plaintiff alone cannot be said to be faulty. On the previous dates, there were winter vacations and heavy snow fall, which had caused water seepage in the Office of learned counsel for the plaintiff, due to which files, were suffered and got mixed up resulting in bonafide delay.

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Learned counsel appearing on behalf of the petitioner has argued that non appearance of the plaintiff’s witnesses on 20.4.2017, was neither intentional nor willful, as on that day, the learned Counsel could not appear in the learned Court below, as there was a general house of the District Bar Association, Shimla, in which, the learned counsel was present and no one can

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appear for the plaintiff, as the witnesses, who were earlier present in the learned Court below, gone to attend meeting. Plaintiff’s was

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a Government Corporation and the learned counsel assured the plaintiff’s Corporation employees that he will take care of the case and call them, when they are to be examined. He has further argued that this was the valid reason that no witness could appear on that day. On the other hand, learned counsel appearing on behalf of respondent No.1/Municipal Corporation has submitted that the plaintiff is delaying the matter and so the petition may be dismissed. Mr. Pradeep Kumar Sharma, learned counsel for respondent No.2 has submitted that there was a general house on that day and that was the reason, no one could appear for the defendants before the learned Court below. 4. Heard. At this moment, taking into consideration the fact that the plaintiff’s witnesses could not appear in the learned Court below on 20.4.2017, for the reason, which were beyond the control of plaintiff and their non-appearance was neither intentional nor willful, simply for the reason that the learned counsel for the plaintiff could not appear before the learned Court below due to unavoidable circumstances, as mentioned hereinabove. The parties should not suffer because of the learned Counsel remained busy in a general house. Otherwise also, the plaintiff is a Corporation, which was owned and controlled by the Government of India. After going through the record, this Court is satisfied that non-appearance of the plaintiff’s witnesses was

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beyond their control. So, in the interest of justice, one more opportunity is required to be given to the plaintiff to lead his evidence, to meet the ends of justice. Accordingly, the impugned order, dated 20.4.2017, passed by the learned Court below is set aside and it is ordered that the learned Court below will fix the date for plaintiff’s evidence. Ordered accordingly. Parties through their learned counsel are directed to appear before the learned Court

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below on 29^th July, 2017.

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In view of the above, the petition is disposed of in

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the aforesaid terms, so also the pending application (s), if any. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Record of the learned Court below be sent

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back immediately.

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Copy dasti.

Bharat Sanchar Nigam Ltd. v. Municipal Corporation Shimla

Case brief

What is this about?

What did the court decide?

Bharat Sanchar Nigam Ltd. v. Municipal Corporation Shimla

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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