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2013 DIGILAW 350 (HP)

KIRAN SOOD v. RAKESH SOOD

2013-04-25

SURINDER SINGH

body2013
JUDGEMENT SURINDER Singh, J. The plaintiffs filed the present suit seeking partition by metes and bounds and possession of the property comprised in Khata No.20 Khasra No.21, situated at Village Pateog, Tehsil and District Shimla (New Shimla-2) and property at Village Kaloha, Tehsil Dehra Gopipur, District Kangra, H.P., as per shares of the parties for rendition of accounts etc. Whether reporters of local papers may be allowed to see the judgment? 2. INITIALLY the suit was resisted and contested by the defendants and this Court had framed the following issues on 27.11.2007:- "1. Whether the suit properties are the joint properties of the parties and if so what are the shares of parties? ...OPP. 2. Whether the plaintiffs are entitled to a decree for rendition of accounts as claimed and if so from whom? ...OPP. 3. If issue No.1 is proved in affirmative, whether the plaintiffs are entitled to partition of the suit properties by metes and bounds and separate possession as claimed by them? ...OPP. 4. Whether the suit as framed is neither competent nor maintainable as alleged? ...OPD. 5. Whether the plaint has not been properly verified as alleged and if so to what effect? ...OPD. 6. Whether the suit is not properly valued for the purpose of Court fees and jurisdiction and if so what is the correct valuation? ...OPD. 7. Whether the plaintiffs are estopped from filing the suit on account of their acts, deeds and conduct etc., as alleged? ...OPD. 8. Whether the parties are in possession of their respective shares in properties after partition in the year 1987? ... Onus on parties. 9. Relief." The onus of the main issues was on the plaintiffs. 3. THEREAFTER , the matter was fixed for evidence of the plaintiffs, but the plaintiffs did not take any steps to examine their witnesses nor list of witnesses was filed despite reasonable and repeated opportunities, more specifically since 24.9.2008. Even on 26.8.2010, an opportunity was accorded to the plaintiffs for adducing evidence, to which they failed to avail. Ultimately, the matter was listed before the Court on 29.4.2011 and last opportunity was accorded subject to the payment of costs of Rs.1,000/- and the matter was again ordered to be listed before Registrar (Judicial) for taking steps within two weeks for the plaintiffs' evidence. 4. Ultimately, the matter was listed before the Court on 29.4.2011 and last opportunity was accorded subject to the payment of costs of Rs.1,000/- and the matter was again ordered to be listed before Registrar (Judicial) for taking steps within two weeks for the plaintiffs' evidence. 4. AGAIN till 2.3.2012, the matter remained as it was, as no steps were taken by the plaintiffs nor the plaintiffs or their witnesses were present, ultimately on that day, further four weeks time was again granted to file power of attorney on behalf of the plaintiffs as the original counsel Shri Ajay Kumar was designated as Senior Counsel. Thereafter, the case was listed for 2.4.2012. It was noticed that the costs of '.1,000/- in terms of the order dated 29.4.2011 and power of attorney on behalf of the plaintiffs was not filed, thus awaited, however, learned counsel for the parties made a statement before the Court that inter-se dispute between the parties stand settled and some time is required for filing the formal compromise. The prayer was considered and allowed in the interest of justice and the case was ordered to be listed on 11.5.2012 for deposit of the costs and filing of the power of attorney and also for appearance of the parties, in person or through their recognised agents. Again on 11.5.2012, time was sought to file power of attorney and deposit of the costs and also for settlement as well and the suit was adjourned for 6.8.2012, but there was no headway in the suit. The status of the suit remained as it was. Thus, on 21.8.2012, it was submitted by the learned counsel for the plaintiffs that the matter could not be fully settled between the parties. In these circumstances, the presence of the parties was not required and the case was ordered to be listed for the evidence of the plaintiffs on taking steps within a week. Despite two opportunities to the plaintiffs before the Additional Registrar (Judicial) for compliance, they failed to take steps nor witnesses were produced. Lastly, it was fixed before the Court on 18.10.2012, on which date, it was noticed that no steps were taken for summoning the PWs. Learned counsel for the plaintiffs prayed for adjournment and granted last opportunity of two weeks for taking steps and summoning the entire evidence of the plaintiffs subject to the payment of costs of '.2,000/-. Lastly, it was fixed before the Court on 18.10.2012, on which date, it was noticed that no steps were taken for summoning the PWs. Learned counsel for the plaintiffs prayed for adjournment and granted last opportunity of two weeks for taking steps and summoning the entire evidence of the plaintiffs subject to the payment of costs of '.2,000/-. Again the matter was ordered to be listed for evidence of the plaintiffs, but the plaintiffs neither complied with the order nor the plaintiffs were present and even the witnesses were produced. 5. IN view of the above situation and also the provisions of Order 17 Rule 1 of the Code of Civil Procedure, no further opportunity is possible in the matter. According to learned counsel appearing for the plaintiffs, despite sending number of registered letters to the plaintiffs nobody had turned up and no further instructions have been received. Therefore, in the above-stated position, right of the plaintiffs for leading the evidence is hereby struck off. Since there is no evidence on the main issues, therefore, the suit of the plaintiffs is dismissed, as also the pending application(s), if any.