Allowed

Gopi Nath Kashyap and Anr. v. Dwarika Prasad Kashyap and Ors.

Patna HC20 Sept 2013CWJC/19673/2011

Case brief

AI extract

What is this about?

High Court under Article 227 recalled an order closing evidence in a title suit, permitting plaintiffs to examine witnesses on a day-to-day basis. It imposed conditions for list-month deadlines and daily costs for absent witnesses.

What did the court decide?

Recall order dated 5.9.2011 permitting petitioners to adduce evidence on day-to-day basis with cost of Rs.10,000 per day for absence of witnesses.

Gopi Nath Kashyap and Anr. Vs Dwarika Prasad… — Civil Procedure and Limitation | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19673 of 2011

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====================================================== 1. Gopi Nath Kashyap Son Of Late Ram Prasad Kashyap Resident Of Mohalla-Maharaj Ghat, Machharhatta Main Road, Sri Gopi Nath Jee Ki Mandir Gali, P.S. Khajekalan, Distt. Patna.

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Asha Devi @ Asha Kashyap Wife Of Gopi Nath Kashyap Resident Of Mohalla-Maharaj Ghat, Machharhatta Main Road, Sri Gopi Nath Jee Ki Mandir Gali, P.S. Khajekalan, Distt. Patna.

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.... .... Petitioner/s Versus

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Dwarika Prasad Kashyap Son Of Late Ram Prasad Kashyap Resident Of Mohalla-Mir Jawan Ki Chhabni Marufganj, P.S. Malsalami, Distt. Patna. 2. Satya Prakash Kashyap Son Of Sri Dwarika Prasad Kashyap Resident Of Mohalla-Mir Jawan Ki Chhabni Marufganj, P.S. Malsalami, Distt. Patna. 3. Anant Prakash Kashyap Son Of Sri Dwarika Prasad Kashyap Resident Of Mohalla-Mir Jawan Ki Chhabni Marufganj, P.S. Malsalami, Distt. Patna.

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.... .... Respondent/s

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==================================================== Appearance :

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For the Petitioner/s : Mr. Rakesh Kumar Verma For the Respondent/s : Mr. Shailendra Kumar Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER

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The petitioners in the present application under Article 227 of the Constitution of India are aggrieved by an order dated 21.9.2011 passed in Title Suit No. 15 of 2009 by learned Sub-Judge Vth, Patna City, whereby the Court below has rejected a petition under Order XVIII Rule 7 of the Code of Civil Procedure ( hereinafter referred to as the ‘Code’) dated 12.9.2011 filed by them for recalling an earlier order dated 5.9.2011. By the order dated 5.9.2011 the

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5 20-09-2013

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Court below closed the evidence of the plaintiffs, who are petitioners in the present application, as they failed to adduce evidence in spite of the order of this Court.

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Learned counsel for the petitioners has submitted that in the facts and circumstances of the case, only for the purpose of disposal of the suit in the light of the order passed by this Court in Misc. Appeal No. 173 of 2010, the Court below ought not to have rejected the said application as such rejection has caused serious prejudice to the case of the petitioners/plaintiffs. He submits that for proper adjudication of the dispute between the parties, the petitioners/plaintiffs should have been permitted to adduce their evidence.

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Opposing the prayer, learned counsel appearing on behalf of the respondents has submitted that the conduct of the petitioners dis-entitled them for any relief by this Court in exercise of power under Article 227 of the Constitution of India. He submits that the petitioners for some reason or the other have been trying to delay disposal of the suit by one way or the other and at their instance or because of them at least 56 adjournments were granted by the Court below. He submits that if at this stage, they are permitted to

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adduce further evidence, this will unnecessarily delay in disposal of the suit in the Court below.

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However, keeping in view the nature of controversy, I think it proper and equitable in the ends of justice to direct the Court below to recall the order dated 5.9.2011 passed by it in Title Suit No. 15 of 2009 and permit the petitioners to adduce their evidence, which will be subject to the conditions that they will be adducing their evidence on day to day basis from the date as fixed by the Court below.

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Learned counsel for the petitioners has submitted that the plaintiffs are required to examine three/four more witnesses and they will be examining such witnesses on day to day basis which will not take more than three days. The Court below shall proceed accordingly, in terms of undertaking given on behalf of the petitioners before this Court in the present case.

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Needless to say that the respondents/ defendants shall have the opportunity to cross-examine such plaintiffs’ witnesses. It is indicated that the plaintiffs’ witnesses must remain present on the dates fixed for their examination/cross-examination in the Court below.

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In the event of the failure on the part of any plaintiffs’ witnesses to be present on the date fixed for their examination or cross-examination, the plaintiffs shall be liable to pay a cost of Rs.10,000/-(ten thousand) for each day of such absence, which will be deposited in the Court below to be paid to the defendants.

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The nature of the order as indicated above is being passed, in the larger interest of justice and at the same time keeping in mind the rival submissions and the fact that in spite of several adjournments, the plaintiffs had failed to adduce evidence.

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It is expected that the Court below shall proceed to dispose of the suit as expeditiously as possible, keeping in mind the spirit of the order passed in the present case by this Court.

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This application is disposed of accordingly.

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(Chakradhari Sharan Singh, J)

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Arun Kumar/-

Gopi Nath Kashyap and Anr. v. Dwarika Prasad Kashyap and Ors.

Case brief

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Gopi Nath Kashyap and Anr. v. Dwarika Prasad Kashyap and Ors.

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