Writ petition seeking set aside of lower court order fixing a partition suit matter for argument after closing evidence without allowing petitioners to examine witnesses following substitute party substitution.
The impugned order is set aside; the lower court directed to afford reasonable opportunity to examine witnesses.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12629 of 2011
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.... .... Petitioner/s
.... .... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Arun Kumar, Adv. For the Respondent/s : …………….
====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
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Heard Mr. Yogendra Prasad Sinha, learned counsel appearing on behalf of the petitioners. Though served and appeared through counsel, there is no representation on behalf of the plaintiff-respondent Nos. 1 to 3.
3 11-10-2012
The petitioners are aggrieved by the order dated 05.02.2011 passed by learned Sub-Judge, Bhojpur at Ara in Miscellaneous Case No. 08 of 1991, whereby the learned court below without allowing the petitioners to close their evidence and without allowing them the opportunity of examination of their witnesses, has fixed the matter for argument.
It is the case of the petitioners that a Partition Suit No. 191 of 1989 ended in a compromise and whereafter a preliminary decree and a final decree was prepared and shares were allotted in favour of the parties. Subsequently the compromise decree was questioned by two of the parties to the compromise, namely, Bal Govind Singh and ShivJi by filing a case under Order 23 Rule 3 of the Code of Civil Procedure giving rise to Miscellaneous Case No. 08 of 1991. The petitioner nos. 1 to 4 alongwith the father of the petitioner nos. 5 to 8 were arraigned as respondents. During the course of proceedings, while the opposite parties were examining their witness, the opposite party no. 1 Suraj Singh deceased and was substituted by his legal heirs. It is stated that
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following the substitution, the examination of the witnesses stopped and the matter proceeded for appearance of the substituted heirs. The widow alongwith her two sons appeared but the daughters of the deceased Suraj Singh did not file appearance and so the matter remained pending for appearance of the daughters. With reference to the order sheet enclosed with the proceedings it is stated that by order dated 03.04.2010, learned trial court accepted that the summons to the daughters of deceased Suraj Singh was validly served. It is stated that thereafter vide order passed on 1.10.2010 the matter was fixed for argument without allowing the respondents to conclude their evidence. It is stated that the petitioners invited the attention of the court below to their denial of opportunity to examine witnesses, by filing an application but the same was rejected by the order impugned and hence the present application.
Pursuant to the notice issued by this Court, the respondent nos. 1 to 3 have appeared through counsel. However, there is no representation on their behalf although the name of the counsel is appearing in the daily cause list.
As noted hereinabove, the petitioners having appeared through counsel, neither anybody appeared when the matter was taken up yesterday and was passed over nor there is any
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representation on behalf of the plaintiffs-respondents today.
Mr. Sinha is very correct when the record reflects that the examination of the witnesses at the instance of the opposite partypetitioners having been suspended by reason of death of opposite party No.1, Suraj Singh, the opposite parties thereafter were not allowed to complete the examination of the witnesses. On the contrary evenwhile recording the non-appearance of the daughters of Suraj Singh, the learned Court below has closed the evidence and posted the matter for argument. The appearance or non appearance of the substituted heirs of opposite party No.1 Suraj Singh cannot be a reason for denial of the opportunity to the petitioner including the son and widow of Suraj Singh of their right to examine the witnesses. The ordersheet shows that no such opportunity was provided to them rather the learned Court below has abruptly posted the matter for arguments without assigning any reasons as to the closure of the evidence of the petitioners. The same cannot be sustained as it is resulting in injustice to the petitioners for no fault of their own. A right in a contesting litigant to examine the witness is a vested legal right and cannot be denied unless the circumstances/conduct warrants as such. The ordersheet does not reflect any such circumstance warranting the exercise of power by the learned Court below for closure of the
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evidence.
For the reasons aforesaid, the order impugned is set aside. The learned Court below would accordingly proceed in accordance with law affording reasonable opportunity to the petitioners to examine the witnesses.
This writ application is allowed.
(Jyoti Saran, J)
Bibhash/-
1 issue framed by the court
Whether the lower court was justified in closing the evidence and fixing the matter for argument without affording the petitioners an opportunity to examine their witnesses.
1 provisions across 1 enactments
Birbal Singh
Nirmal Singh
Badsah Singh
Rajpati Singh
Janeshwar Singh
Budhan Singh
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
