Allowed

Gopal Dutt Vyas S/O Sh. Jamna Bhallabh v. Mahant Prem Bhallabh Late S/O Sh. Radha Bhallabhji

Rajasthan HC31 Aug 2024CW/18744/2018

Case brief

AI extract

What is this about?

High Court allowed two writ petitions challenging trial court orders that denied petitioners defense witnesses the right to cross-examine plaintiffs and produce evidence. Upholding valuation of right to adduce evidence, it granted opportunity subject to payment of costs.

What did the court decide?

Impugned orders quashed; opportunity granted to cross-examine plaintiffs and produce defense affidavits upon payment of Rs.15,000 cost.

Gopal Dutt Vyas S/O Sh. Jamna Bhallabh Vs Mahant… — Execution and Attachment | Rajasthan HC (2024)

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[2024:RJ-JP:36619]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 18744/2018

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Gopal Dutt Vyas S/o Sh. Jamna Bhallabh, (Died During Pendency) Through LRs

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1/1. Smt. Kanta Vyas W/o Gopal Dutt Vyas, Resident Of Temple 11 Rudra Mahadev, Johari Bajar, Vijay Gopal Ji Jaipur. (Deleted Vide Order Dated 30.01.2018)

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1/2. Smt. Ranjna Sharma D/o Gopal Dutt Vyas W/o Sh. Narendra Mohan Sharma, Resident Of House No. 2018, Vyas Bhawan, Mistri Khana Ka Rasta, Upper Of The Integral Bank, Jaipur.

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----Petitioner-Defendant No.1

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Versus

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Mahant Prem Bhallabh Late S/o Sh. Radha Bhallabhji, Resident Of Jaipur Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji (Died During Pendency) Through Lrs

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1/1. Smt. Kanchan Devi W/o Sh. Bhagwan Sahai Ji D/o Sh. Mahant Late Prem Bhallabh Ji, Aged About 55 Years, Resident Of Mandir Shri Vijay Gopal Ji, Chokdi Ghat Darwaja, Johari Bajar, Jaipur

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Govind Bhallabh S/o Durga Bhallabh, (Died During Pendency)

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2/1. Rameshwar Prasad S/o Late Sh. Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur

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2/2. Rajeshwar Prasad S/o Late Sh. Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur.

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2/3. Smt. Bhagwati Devi Alias Nirmala Devi D/o Govind Bhallabh Ji W/o Sh. Arjun Kumar Tiwari, Resident Of Hanuman Ka Rasta, Gokul Mishra Ka Darwaja, Chokdi Vishweshar Ji, Jaipur

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Suresh Vyas S/o Jamna Bhallabh, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur

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Kameshwar Sharma S/o Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur.

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[CW-18744/2018]

Smt. Nirmala Devi Alias Chinji Bai W/o Vijay Narayan Ji, (Died During Pendency)

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5/1. Rajkumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan)

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5/2. Santosh Kumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan).

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5/3. Manoj Kumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan)

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5/4. Smt Madhu Sharma W/o Shri Virendra Kumar Sharma, Resident Of D-5-6, Girdhar Colony, Murlipura, Jaipur

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5/5. Smt Sudha Kumari W/o Shri Devesh Kumar Alias Tinku, Resident Of Mandir Champawat Ji, Johari Bazar, Jaipur

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Satish S/o Shri Shyam Chand, Resident Of Chokadi Vishveshwar Ji, Mandir Champawat Ji, Johari Bazar, Jaipur

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Sushila W/o Shri Person Kumar Sharma, At Present Residing At Ahmadabad E-112, Patel Marg, Ahmadabad.

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Himesh Dhadhich S/o Shri Kameshwar Sharma, Resident Of 11, Rudra Mahadev Ka Mandir, Johari Bazar, Jaipur

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 24101/2018

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Gopal Dutt Vyas S/o Sh. Jamna Bhallabh, (Died During Pendency) Through LRs

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1/1. Smt. Kanta Vyas W/o Goptal Dutt Vyas, Resident Of Temple 11 Rudra Mahadev, Johari Bajar, Vijay Gopal Ji Jaipur. (Name Deleted Vide Order Dated 30.01.2018)

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1/2. Smt. Ranjna Sharma D/o Gopal Dutt Vyas W/o Sh. Narendra Mohan Sharma, Resident Of House No. 2018, Vyas Bhawan, Mistri Khana Ka Rasta, Upper Of The Integral Bank, Jaipur

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----Petitioner-Defendant No.1

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Versus

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Mahant Prem Bhallabh Late S/o Sh. Radha Bhallabhki, , Resident Of Jaipur Chokdi Ghat Darwaja, Johari Bajar,

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Mandir Shri Vijay Gopal Ji (Died During Pendency) Through Lrs.

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1/1. Smt. Kanchan Devi W/o Sh. Bhagwan Sahai Ji D/o Sh. Mahant Late Prem Bhallabh Ji, Aged About 55 Years, Resident Of Mandir Shri Vijay Gopal Ji, Chokdi Ghat Darwaja, Johari Bajar, Jaipur

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Govind Bhallabh S/o Durga Bhallabh, (Died During Pendency)

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2/1. Rameshwar Prasad S/o Late Sh. Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur.

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2/2. Rajeshwar Prasad S/o Late Sh. Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur

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2/3. Smt. Bhagwati Devi Alias Nirmala Devi D/o Govind Bhallabh Ji W/o Sh. Arjun Kumar Tiwari, Resident Of Hanuman Ka Rasta, Gokul Mishra Ka Darwaja, Chokdi Vishweshar Ji, Jaipur

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Suresh Vyas S/o Jamna Bhallabh, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur

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Kameshwar Sharma S/o Govind Bhallabh, Resident Of Jaipur, Chokdi Ghat Darwaja, Johari Bajar, Mandir Shri Vijay Gopal Ji, Jaipur

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Smt. Nirmala Devi Alias Chinji Bai W/o Vijay Narayan Ji, (Died During Pendency)

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5/1. Rajkumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan)

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5/2. Santosh Kumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan)

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5/3. Manoj Kumar Sharma S/o Vijaynarayan Sharma, Resident Of 11 Rudra Mahadev Temple, Johari Bajar, Vijay Gopal Ji Jaipur (Rajasthan)

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5/4. Smt Madhu Sharma W/o Shri Virendra Kumar Sharma, Resident Of D-5-6, Girdhar Colony, Murlipura, Jaipur

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5/5. Smt Sudha Kumari W/o Shri Devesh Kumar Alias Tinku, Resident Of Mandir Champawat Ji, Johari Bazar, Jaipur

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Satish S/o Shri Shyam Chand, Resident Of Chokadi Vishveshwar Ji, Mandir Champawat Ji, Johari Bazar, Jaipur.

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Sushila W/o Shri Person Kumar Sharma, At Present Residing At Ahmadabad E-112, Patel Marg, Ahmadabad.

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Himesh Dhadhich S/o Shri Kameshwar Sharma, Resident Of 11, Rudra Mahadev Ka Mandir, Johari Bazar, Jaipur

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----Respondents

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For Petitioner(s) : Mr. Mohd. Adil For Respondent(s) : Mr. Harsh Sharma

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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31/08/2024

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With the consent of counsel for both the parties, both writ petitions have been heard finally on merits.

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Both writ petitions have been preferred by petitionersdefendant, challenging interlocutory orders passed in Civil Suit No.268/1989 titled Mahant Prem Bhallabh and Anr. Vs. Gopal Dutt Vyas and Ors. by the Court of Additional Civil Judge and Metropolitan Magistrate (East), Jaipur Metropolitan, hence, both writ petitions are being decided by this common order.

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In writ petition No.18744/2018, petitioners are aggrieved by closure of their right of cross-examination of plaintiff Kanchan Devi (PW-1) as well as two witnesses of plaintiff, namely, Radha Krishan (PW-2) and Bhagwan Sahay (PW-3) vide orders impugned dated 15.04.2015 and 19.07.2018.

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In writ petition No.24101/2018, petitioners are aggrieved by declining to take affidavits of defendants’ witnesses namely Ved

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[CW-18744/2018]

(5 of 8)

Vyas (DW-2) and Manak Rao (DW-3), and have impugned the orders dated 14.08.2018 and 01.09.2018.

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Learned counsel for the petitioners contends that the respondents-plaintiffs filed a civil suit for possession, demolition of construction and mesne profit wayback in the year 1989. In the Civil Suit, service of notices upon all defendants was effected by 19.02.2011 and thereafter, suit proceedings were delayed on account of filing applications by the plaintiffs. Learned counsel submits that petitioner-defendant No.1 is diligently contesting the suit and there is no gross negligence on his part, however, the trial Court vide order dated 15.04.2015 closed his right to crossexamine the plaintiff and plaintiffs’ two witnesses (PW-1 to PW3) and further, application moved by petitioner, seeking permission to cross-examine these witnesses has been dismissed vide order dated 19.07.2018.

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Learned counsel for petitioners further submits that after closer of defendant’s right of cross-examination, case was posted for evidence of defendant and defendant-Ranjna Sharma produced her own affidavit in examination-in-chief as also produced affidavits of two witnesses, namely, Ved Vyas (DW-2) and Manak Rao (DW-3), but only the affidavit of defendant-Ranjna Sharma has been taken on record and affidavits of witnesses DW-2 and DW-3 have been declined to be taken on record and in this regard, orders dated 14.08.2018 and 01.09.2018 have been challenged.

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Learned counsel for petitioners submits that the proceedings of present civil suit have been stayed by this Court vide order dated 03.11.2018 and since then, proceedings are withheld. He

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submits that considering the nature of civil suit and the fact that proceedings of present suit are withheld since 2015, only on the issue related to grant of opportunity to petitioners-defendants to cross-examine the plaintiff and his witnesses as also for allowing defendant to produce his two witnesses, impugned orders be quashed and petitioners be allowed to cross-examine PW-1 to PW3 as also to produce evidence of DW-2 and DW-3. Learned counsel submits that petitioners are ready to pay the reasonable cost to compensate the delay on their part, if any, but in totality of facts and circumstances, to secure the ends of justice, one opportunity be afforded to petitioners to cross-examine the plaintiff and his witnesses as well as to produce evidence of witnesses of petitioners-defendants.

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Learned counsel for respondents has opposed the writ petitions and contended that the suit proceedings have been delayed, on account of conduct of the petitioners-defendants, therefore, he may be saddled with cost in this case.

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Having considered the rival contentions of counsel for both the parties and taking into consideration the manner in which the proceedings have commenced in this suit, the delay may not be attributed to the petitioner-defendant No.1 alone. Further, considering the nature of present civil suit and issues involved therein, this Court finds that in order to adjudicate the issues involved in the present suit, evidence from both the sides must come on record and opportunity to petitioners-defendants should be given to cross-examine PW-1 to PW-3 as also to produce their evidence.

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In umpteen number of judicial pronouncements, delivered by the Hon’ble Supreme Court as well as by the Rajasthan High Court, it has been observed that adducing the evidence by party in the civil suit, is a valuable right and should not be shut out, merely on ground of delay, unless and until, gross negligence is attributed to his part. To buttress such view, reference of judgments of the Hon’ble Supreme Court Kewal Krishan Vs. Harnek Singh [(2001) 9 SCC 117] and Smt. Koyali Devi Vs. Smt. Vidhya Devi [2001 WLC (UC) 544] would be suffice.

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In such view of matter, to secure the ends of justice, this Court deems it just and proper to grant opportunity to the petitioners-defendants to cross-examine the plaintiff and his two witnesses i.e. PW-1 to PW-3 as also to adduce their full defence evidence, subject to payment of cost of Rs.15,000/- by him to the respondent-plaintiff.

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As a final result, both writ petitions succeed. The trial Court shall fix any date, to make payment of cost of Rs.15,000/- by petitioner-defendant No.1 to respondents-plaintiffs and on payment of such cost, the trial Court shall direct plaintiff-Kanchan Devi (PW-1), her witnesses Radha Mohan (PW-2) and Bhagwan Sahay (PW-3), to appear on respective dates, for the purpose of cross-examination by the petitioner-defendant No.1. Thereafter, apart from allowing to complete the evidence of defendant Ranjna Sharma DW-1 herself, the petitioners-defendants shall be permitted to produce the affidavits of Ved Vyas (DW-2) and Manak Rao (DW-3) in their evidence.

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The payment of cost by petitioner-defendant No.1 shall be condition precedent to allow cross-examination and to adduce evidence by defendant No.1 and on such terms, the impugned orders in both writ petitions are hereby quashed and set aside.

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Considering the fact that the present civil suit is pending since 1989, it is expected that the trial Court shall make an endeavor to expedite the trial of the present civil suit. Both parties are directed to extend their full support to the trial Court to conclude the proceedings of present civil suit earliest possible. 14. With aforesaid observations, both these writ petitions stand allowed.

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A copy of this Order be forwarded to the trial Court forthwith.

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(SUDESH BANSAL),J

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SOURAV /109-110

Gopal Dutt Vyas S/O Sh. Jamna Bhallabh v. Mahant Prem Bhallabh Late S/O Sh. Radha Bhallabhji

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Gopal Dutt Vyas S/O Sh. Jamna Bhallabh v. Mahant Prem Bhallabh Late S/O Sh. Radha Bhallabhji

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