Allowed

Lrs of Anoop Singh v. Ashok Kumar

Rajasthan HC16 Nov 2023CW/9243/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the trial court's rejection of an application to recall a marginal witness (PW-2) in a specific performance suit. The High Court held that the witness's past paralysis constituted sufficient cause for the delay and set aside the impugned order, directing the trial court to allow the witness's production.

What did the court decide?

The impugned order rejecting the recall application is set aside. The trial court is directed to give the plaintiff an opportunity to produce the witness.

Lrs of Anoop Singh Vs Ashok Kumar — Specific Performance | Rajasthan HC (2023)

(1 of 6)

[2023:RJ-JD:39366]

[CW-9243/2023]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶5

S.B. Civil Writ Petition No. 9243/2023

¶6

Lrs Of Anoop Singh, S/o Daya Singh Through

¶7

1/1. Amandeepkaur W/o Late Shri Anoop Singh, Aged About 43 Years, By Caste Jatsikh, Resident of Chak 40H, Tehsil Srikaranpur, District Sriganganagar (Raj.).

¶8

1/2. Manjeetkaur W/o Daya Singh, Aged About 40 Years, By Caste Jatsikh, Resident Of Chak 40H, Tehsil Srikaranpur, District Sriganganagar (Raj.).

¶9

1/3. Roopendrakaur D/o Anoop Singh, Aged About 25 Years, By Caste Jatsikh, Resident Of Chak 40H, Tehsil Srikaranpur, District Sriganganagar (Raj.).

¶10

1/4. Ravindrakaur D/o Anoop Singh, Aged About 23 Years, By Caste Jatsikh, Resident Of Chak 40H, Tehsil Srikaranpur, District Sriganganagar (Raj.).

¶11

1/5. Karanveer Kaur D/o Anoop Singh, Aged About 17 Years, Minor Through Her Natural Guardian Mother Amandeepkaur W/o Anoop Singh, Aged About 39 Years, By Caste Jatsikh, Resident Of Chak 40H, Tehsil Srikaranpur, District Sriganganagar (Raj.).

¶12

----Petitioners

¶13

Versus

¶14

Ashok Kumar S/o Jalam Singh, Aged About 41 Years, By Caste Girth (Choudhary) Resident Of Kandi, Tehsil Nurpur, District Kangda (Himachal Pradesh).

¶15

Moja Ram S/o Jalam Singh, Aged About 35 Years, By Caste Girth (Choudhary) Resident Of Kandi, Tehsil Nurpur, District Kangda (Himachal Pradesh).

¶16

Raghuveer Singh S/o Jalam Singh, Aged About 37 Years, By Caste Girth (Choudhary) Resident Of Kandi, Tehsil Nurpur, District Kangda (Himachal Pradesh).

¶17

----Respondents

¶18

For Petitioner(s) : Mr. Pritam Solanki For Respondent(s) : Mr. S.L. Jain

¶19

HON'BLE MR. JUSTICE ARUN MONGA Order (Oral)

¶20

16/11/2023

¶21

Petition herein is directed against an order dated 25.05.2023 (Annexure.6) passed by learned trial Court vide which the

(2 of 6)

[2023:RJ-JD:39366]

[CW-9243/2023]

application under Order 18 Rule 17 read with Section 151 CPC, filed by the plaintiffs, petitioners herein, has been rejected.

¶26

Succinct facts first, as pleaded in the instant petition.

¶27

2.1 The petitioners filed a suit for Specific Performance of Contract on 03.04.2008 against the respondents' qua agreement to sell dated 31.03.1999, which was entered between the mother of respondent no. 1 and the petitioners, pertaining to a land situated at Tehsil Anoopgarh. Despite service of notice, respondents-defendants did not appear and ex parte proceedings were initiated. Learned trial Court, vide order dated 27.08.2008, decreed the suit in favour of the petitioners-plaintiffs.

¶28

2.2. Respondents filed an application under Order 13 Rule 9 CPC for setting aside the ex parte order, which was allowed vide order dated 17.11.2011 and the proceedings recommenced. Thereafter, respondents filed a reply and denied the averments made in the plaint. Issues were framed.

¶29

2.3. However, due to the ill health of the second witness of petitioner, Tej Singh, he was unable to appear before the Court for cross-examination on the affidavit in chief he had submitted. Consequently, the learned Trial Court closed the evidence on 16.12.2017.

¶30

2.4. Since the cross-examination of petitioners-plaintiffs was closed, petitioners moved an application under Order 18 Rule 17 read with Section 151 CPC for recalling their witness, namely, Tej Singh, as he could not appear earlier for cross-examination because of the on going medical treatment for paralysis which he was suffering from.

(3 of 6)

[2023:RJ-JD:39366]

[CW-9243/2023]

2.5. Learned trial Court, vide impugned order dated 25.05.2023 (Annexure. 6), rejected the application filed by the petitioners on the ground of delay. Hence, this writ petition.

¶35

Learned counsel for the petitioners contends that learned trial Court failed to consider that, as per the record, three affidavits were filed on behalf of the petitioners. However, due to the ill health of one of the witnesses namely, Tej Singh, who underwent treatment for paralysis, he could not appear before the trial Court for cross-examination. He further argues that serious prejudice would be caused, keeping in view the fact that there being affidavits on record, without cross-examination of their evidence, the same would not been considered and their claim would be decided against the petitioners. He also states that as soon as the said witness was able to appears and talk, an application was submitted for cross-examination but the same has been wrongly dismissed by the learned trial Court.

¶36

On the other hand, learned counsel for respondents opposes the prayer made by learned counsel for the petitioners and submits that learned trial Court has rightly passed the impugned order and the same does not suffer from any illegality and hence, no ground is made out for interference. 4.1. He argues that that the application was moved after the final arguments had been heard. He also, inter alia, relies upon a judgment rendered by the Honble Supreme Court in the case of Bagai Construction Vs. Gupta Building Material Store.

¶37

Heard the competing contentions of learned counsel for the parties.

(4 of 6)

[2023:RJ-JD:39366]

[CW-9243/2023]

What transpires is that concededly the affidavit by way of examination-in-chief of PW-2, who is stated to be a marginal witness to the agreement to sale and then a material witness, had already been filed way back on 01.08.2008. In the premise, it does not, therefore, appear that the said witness is either an afterthought or being introduced as a belated attempt, in any manner, so as to delay the trial.

¶42

Pertinently, earlier, an ex parte judgment and decree was passed by the trial Court and since the petitioners were proceeded ex parte in its wisdom, the plaintiff deemed it fit only to rely on the testimony of PW-1, who is the plaintiff and he himself did not summon PW-2.

¶43

Once ex parte judgment and decree were recalled, and the suit was restored to its original status, the further proceedings have to be conducted by giving an opportunity to both sides to adduce their respective evidence. At the time of the plaintiff closing his evidence on 01.09.2017, he did not produce PW-2 even though his affidavit in examination-in-chief had been tendered prior thereto. In the absence of PW-2 not being produced in crossexamination on his affidavit, the same cannot be read in evidence. 9. Subsequently, the application dated 16.02.2023 was filed by the petitioner, stating that PW-2 be allowed to be produced in support of the plaintiff's evidence, and his cross-examination be carried qua the affidavit already filed by him. The reasons stated in the application, even though not very happily worded in terms of their chronology, but same unequivocally convey that at the relevant time, PW-2 was suffering from paralysis and also had

(5 of 6)

[2023:RJ-JD:39366]

[CW-9243/2023]

some speech impairment. Therefore, he was not in position to appear in support of his affidavit to undergo cross-examination. 10. Be that as it may, what seems to have weighed in the mind of the trial Court was that the application seeking to recall/summon PW-2 was filed merely with dilatory purpose to delay the proceedings. Delay in proceedings, in any case, if at all, would have been rather detrimental to the plaintiff himself, who is before the trial Court seeking relief. To that extent, the said delay would not prejudice the defendant at all.

¶48

In the overall premise, I am of the view that, in order to meet the ends of justice, since there is sufficient cause shown by the plaintiff to not produce the PW-2, in view of his serious medical ailment, whose affidavit was already on record, he is entitled, at this stage, to produce him since he is now stated to have recovered from paralysis.

¶49

No doubt, the application seeking to summon PW-2 was filed belatedly, but since I have already observed that PW-2 was suffering from paralysis, there was no way the petitioner could have produced him in the Court earlier in view of his ailment. The necessary steps were taken only after the said witness recovered from his paralysis.

¶50

At this stage, when the quantum of cost to be imposed on the petitioners for causing delay, if any, was being contemplated by the Court, learned counsel for the respondents fairly states that it is not a matter of cost but on the principle of law, he was opposing the petition, and no cost needs to be imposed.

¶51

As an upshot, petition is allowed and the impugned order is set aside. The trial Court is directed to give one effective

[CW-9243/2023]

[2023:RJ-JD:39366]

(6 of 6)

opportunity to the plaintiff to produce PW-2 subject of course to its discretion to grant further opportunity, in case it so desires depending upon exigencies of work before it. It would be appreciated that since the trial has already been delayed, for one reason or the other, after recording/conclusion of the testimony of PW-2, the final order shall be passed within a period of three months thereafter.

¶56

Pending application(s), if any, shall also stand disposed of.

¶57

(ARUN MONGA), J

¶58

85-Jayesh/-

¶59

Fit for reporting? Yes/ No

Lrs of Anoop Singh v. Ashok Kumar

Case brief

What is this about?

What did the court decide?

Lrs of Anoop Singh v. Ashok Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shiv Ram Vs State of Rajasthan

Naveen Pvt. Iti Vs State of Rajasthan

Kamal Kishor Soni Vs Au Small Finance Bank Ltd.

Rakesh Bagaria Vs State of Rajasthan

Anu Mehta Vs State of Rajasthan

Gulam Rasool Vs Jagdish Chandra