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2018 DIGILAW 1425 (RAJ)

Shimla Devi v. Heeralal

2018-07-03

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - Matter comes up on an application under Article 226(3) of the Constitution of India for vacation of the ex-parte interim order dated 19.2.2018 passed by the Court. Therein the Court while issuing notices to the respondents and directing the matter to be listed on 21st March, 2018, and had also in meanwhile stayed the further proceedings in the suit for injunction before the Trial Court. 2. Mr.Anoop Dhand, counsel for the petitioner-plaintiff (hereinafter 'plaintiff') submits that the suit for injunction is based on a declaration in writing of the deed dated 29.10.1976 which was executed by one Champalal her grand father, and attested by one Nandlal and one Girriraj. He submitted that Champalal the executor of the writing deed dated 29.10.1976 in issue as also the attesting witness, both Nandlal and Girriraj have since expired. The evidence of the plaintiff's was closed on 4.6.2016. An application under Order 17 Rule 2 and 3 CPC was then moved before the Trial Court on 08.12.2016 for permitting to take on record the evidence of grand-sons of Nandal and Girriraj for the plaintiff. It was submitted that vide order dated 27.1.2017 the said application was however cursorily rejected by the Trial Court without regard to the justice of the case, in an irregular exercise of the trial court's jurisdiction. Counsel for the plaintiff further submits that the closure of the plaintiff's evidence on 4.6.2016 in the underlying suit was also wholly unjustified and is therefore unsustainable. Hence both the orders dated 4.6.2016 and 27.1.2017 deserve to be quashed and set aside and be so. 3. Mr.Vijay Pathak counsel for the respondent-defendant No.7 (hereinafter 'defendant') submits that the underlying suit for injunction at the plaintiff's instance was filed in the year 2002. The plaintiff's evidence carried for over a period of 14 years and it was closed on 4.6.2016 without any serious demur or objection from the plaintiff. It was submitted that subsequently while the matter was thereafter in defence evidence, an application was moved as if on second mind as an afterthought on 08.12.2016 for permitting the plaintiff to bring the evidence of the grandsons of Nandlal and Girriraj. The Trial Court in the circumstances has rightly exercised its discretion both for reason of delay and the said witnesses being an afterthought while dismissing the plaintiff's application vide impugned order dated 27.1.2017. The Trial Court in the circumstances has rightly exercised its discretion both for reason of delay and the said witnesses being an afterthought while dismissing the plaintiff's application vide impugned order dated 27.1.2017. He submitted that the plaintiff evidence having earlier been concluded the evidence, was rightly closed on 4.6.2016. Neither of the two orders impugned suffer from any illegality or perversity but are reflective of the Trial Court's discretion judiciously exercised in the facts of the case. 4. Heard. Considered. 5. The underlying suit for injunction was admittedly filed in the year 2002. The plaintiff's evidence was closed on 4.6.2016 after several years had lapsed. Nothing illegal or arbitrary can be attributed to such an order which could warrant interference of this Court under Article 227 of the Constitution of India. Thereafter when the suit was at the stage of evidence of the defendant, an application was moved by the plaintiff on 8.12.2016 to bring in his evidence of two other witnesses who neither were in his list of witnesses and who were not produced before the Trial Court for over a decade during which the plaintiff's evidence was open. The trial court has in the circumstances rightly dismissed the said application filed at the instance of plaintiff. The ex-parte interim order dated 19.2.2018 in this petition therefore, deserves on the facts of the case to be quashed and set aside. 6. That having been done, I find that the present writ petition under Article 227 of the Constitution of India also cannot sustain for the very same reason set out for vacation of the ex- parte interim order dated 19.2.2018. 7. The petition is dismissed. 8. It has been noted in the course of arguments that in the meantime the defence evidence of the plaintiff's has been concluded and the matter is pending for final arguments before the Trial Court since 4.10.2017. The aforesaid suit for injunction was filed in the year 2002. Sixteen years have already lapsed. Pendency of the suit is a drain on time and money of the defendant's. In the circumstances the Trial Court is directed to dispose of the suit within a period of 12 months from the date of presentation of a certified copy of this order.