Dismissed

Harsh Kumar Sharma v. Savita Devi

Punjab & Haryana HC14 Sept 2010CR/5188/2010

Case brief

AI extract

What is this about?

In a civil revision petition, the appellant challenged the trial court's order closing his evidence in a succession suit due to alleged health issues preventing travel to India. The appellant, residing in the UK, had previously been granted adjournment. The High Court dismissed the revision, finding the medical grounds unconvincing and noting the petitioner had ample opportunities already.

What did the court decide?

Impugned order dismissing the closure of petitioner's evidence was not set aside; Civil Misc. Application dismissed.

Harsh Kumar Sharma Vs Savita Devi — Specific Performance | Punjab & Haryana HC (2010)

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Civil Revision No.5188 of 2010(O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No.5188 of 2010(O & M) Date of Decision:14.09.2010

Harsh Kumar Sharma

.... petitioner

Versus

Mrs.Savita Devi & Ors.

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.....respondents

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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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1.Whether Reporters of local papers may be allowed to see the judgement?

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2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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Present: Mr.Ashok Sharma Nabhewala,Advocate for the petitioner

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RAKESH KUMAR GARG J.

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CM No.22963-CII of 2010

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Affidavit dated 25.08.2010 and the medical certificate are

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taken on record.

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Civil Misc.application is disposed of.

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Civil Revision No.5188 of 2010(O & M)

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This is defendant's revision petition challenging the impugned order 15.05.2010, whereby evidence of the petitioner has been closed by order of the Court.

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As per the averments made in this petition, respondent No.1, who is real sister of the petitioner has filed a suit for declaration against the petitioner on the basis of a Will alleged to be executed by their father on 01.06.1966. It is further case of the petitioner that the present suit has been filed on 11.09.1998 after 31 years of the death of their father who died on 26.01.1967. Respondent No.1 deliberately did not indicate the

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Civil Revision No.5188 of 2010(O & M)

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correct address of the petitioner. He is residing in England. He was not sent any summons. An ex parte decree was passed against him which was later on set aside vide order dated 12.06.2007.

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It is the case of the petitioner that evidence of respondent No.1 was closed on 25.11.2009 and thereafter the case was fixed for the evidence of the petitioner on 09.01.2010. In the meantime, he suffered a knee injury and had to undergo a surgery which was fixed for 13.11.2009 but the same was deferred to 07.12.2009. On 09.01.2010, an application was submitted on his behalf before the trial Court through his counsel that since the petitioner has to undergo the operation, as such, he was unable to travel to India and it may take 4-5 months for operation and recovery and, therefore, the case be adjourned for at least 5-6 months. The case was adjourned to 15.02.2010 and thereafter it was adjourned to 15.05.2010. According to the petitioner, he sent a medical certificate, which was submitted before the trial Court through his counsel on 15.05.2010. Aforesaid certificate indicates that petitioner is unable to travel to India for next six months due to his medical condition and a prayer for further adjournment was made. However, the trial Court vide impugned order closed the evidence of the petitioner.

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Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that from the documents on record, it was established that the petitioner was unable to travel to India and therefore on medical grounds it was incumbent for the Court to adjourn the case at his request and, thus, the impugned order, being illegal, was liable to be set aside.

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It may be relevant, at this stage, that petitioner also placed on record of this petition an affidavit dated 25.08.2010 and a medical certificate dated 25.08.2010. According to the said certificate, petitioner is further unable to travel to India for a long time. However, in the affidavit

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Civil Revision No.5188 of 2010(O & M)

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dated 25.08.2010, placed on record, petitioner has stated that he has been advised to travel to India within three months with a further assurance that he will travel to India and lead his evidence in the aforesaid specified time.

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On the basis of the aforesaid medical certificate and the affidavit, learned counsel has further argued that in view of the medical grounds as raised by the petitioner, he is entitled to further opportunities to lead his evidence and the impugned order is liable to be set aside.

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I have heard learned counsel for the petitioner and perused the averments made in the petition as well as the medical certificate and affidavit dated 25.08.2010 and the other documents attached with the civil revision petition.

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It is not in dispute that petitioner is living in UK and at no stage of the suit, has come to India. Even in the trial Court, the ex parte decree was set aside against him on an application which was submitted through his counsel and he is sending the documents/affidavits etc.from U.K.

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Be that as it may, a careful perusal of the application dated 09.01.2010(Annexure P-1) filed by the petitioner before the trial Court would show that petitioner had prayed for an adjournment for 5-6 months. In the medical certificate dated 25.08.2010 placed before this Court, today, it has been stated that he is having chronic health problems and his condition, is expected to remain for a very long time which suggests that he may not be able to travel to India within three months as stated by him in the affidavit dated 25.08.2010. In fact, the affidavit dated 25.08.2010 is in total contradiction of the certificate dated 25.08.2010 issued by the doctor of the petitioner.

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May be the petitioner is unable to come to India due to medical grounds but this is no ground to withhold the proceedings in a court of law. The petitioner has already been granted sufficient

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Civil Revision No.5188 of 2010(O & M)

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opportunities. Moreover, the authenticity of the medical certificate attached with the civil revision has not been established. Even in the application dated 09.01.2010(Annexure P-1) the petitioner had sought time only for 5-6 months which has already expired and now again the petitioner is seeking three months' more time to travel to India. No specific averment has been made by the petitioner to submit before this Court that he will be leading his evidence in the case on a specific date.

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In this view of the matter, the arguments raised on behalf of the petitioner regarding leading his evidence in the case are based on totally vague assertions.

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Thus, no interference is warranted in the impugned order.

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Dismissed.

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(RAKESH KUMAR GARG) JUDGE

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14.09.2010 neenu

Harsh Kumar Sharma v. Savita Devi

Case brief

What is this about?

What did the court decide?

Harsh Kumar Sharma v. Savita Devi

Case brief

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What did the court decide?

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