SMT. SHIMLA DEVI Vs. HEERALAL

JUDGEMENT

(1.) 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. 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.