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Amrit Lal Kapoor And Another v. Kusum Lata Kapoor And Others
Factual and Procedural Background
The appellants are defendants in a civil suit seeking a declaration of title and a permanent prohibitory injunction. Their defence rests on a will allegedly executed in their favour by late Shri Devraj Kapoor, the deceased husband of Respondent 1 (plaintiff). After the plaintiff completed her evidence, the defendants began presenting their own. While evidence was still ongoing, both parties informed the trial court that they were exploring an amicable settlement. When those talks failed on 16-12-2005, the trial court ordered the defendants to produce all remaining witnesses (except DW-1, Durga Singh) on their own responsibility and warned that non-compliance would result in closure of their evidence.
One key witness was Shri Ashwani Kumar Kapoor, an attesting witness to the contested will and a government employee. He applied for casual leave and permission to leave station, but his Executive Engineer denied the request on 18-02-2006 because the Himachal Pradesh State Assembly was in session. Consequently, the witness could not appear on 21-02-2006, and the trial court closed the defendants’ evidence the same day.
The defendants challenged that order before the High Court of Himachal Pradesh in CMPMO No. 54 of 2006, but the High Court summarily dismissed the petition without giving reasons. The present appeal under Article 136 of the Constitution seeks to overturn both the trial court’s and High Court’s orders.
Legal Issues Presented
- Whether the trial court erred in closing the defendants’ evidence when their key attesting witness was unable to attend due to denial of official leave.
- Whether the High Court’s summary dismissal of the defendants’ challenge, without recording reasons, warranted interference by the Supreme Court.
Arguments of the Parties
Appellants' Arguments
- The closure of evidence caused grave injustice because Shri Ashwani Kumar Kapoor is the sole attesting witness to the will, and non-examination would fatally prejudice their defence.
- The witness’s absence was not due to any negligence by the appellants but solely because his superior denied him leave in compliance with a department-wide directive that no staff leave headquarters during the Vidhan Sabha session (21-02-2006 to 07-04-2006).
- The trial court and High Court failed to consider these compelling circumstances, justifying Supreme Court intervention under Article 136.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court accepted that Shri Ashwani Kumar Kapoor’s testimony is crucial because he attested the will central to the defendants’ case. The Court found:
- The witness’s non-appearance resulted from official denial of leave, not from any deliberate default by the appellants.
- Closing the evidence in such circumstances would seriously prejudice the defence and constitute a failure of justice.
- Granting a final opportunity to produce the witness best serves the interests of justice.
Accordingly, the Court set aside both the trial court’s closure order and the High Court’s affirmance, and it remitted the matter to the trial court with specific directions for issuing summons to the witness (both directly and through his immediate superior). The Court also allowed the appellants to examine any other listed but unexamined witnesses, with the onus of production resting on them.
Holding and Implications
Appeal Allowed; impugned orders set aside.
The case is remitted to the trial court, which must:
- Issue summons to Shri Ashwani Kumar Kapoor through appropriate channels and permit his examination.
- Permit the appellants to examine any additional witnesses already listed, with responsibility for their production resting on the appellants.
Each party is to bear its own costs. The decision grants the defendants a final opportunity to present critical evidence but sets no wider precedent beyond reinforcing that procedural orders should not cause substantive injustice when a party’s default is involuntary.
T.S Thakur, J.— Leave granted. This appeal calls in question an order dated 29-3-2006 passed by the High Court of Himachal Pradesh at Shimla whereby an order passed by the trial court closing the evidence of the defendant-appellants herein has been affirmed and CMPMO No. 54 of 2006 filed against the same dismissed.
2. In a suit for declaration of title and consequential relief in the nature of permanent prohibitory injunction, the defendant-appellants herein have set up a will allegedly executed in their favour by late Shri Devraj Kapoor, deceased husband of Respondent 1-plaintiff. After the plaintiff had led her evidence in the suit, the defendant-appellants herein were called upon to adduce evidence in support of their case. While the defendants had yet to conclude their evidence, the parties reported to the court that they were exploring the possibility of an amicable settlement amongst themselves. The compromise talks did not however fructify in any settlement with the result that on 16-12-2005, the parties reported failure of the attempt made in that direction whereupon the court directed the defendant-appellants to produce all their witnesses except DW 1, Durga Singh on their own responsibility. The court further directed that if the defendants failed to produce the evidence as directed the same shall be deemed to have been closed.
3. One of the witnesses which the defendant-appellants had cited, was Shri Ashwani Kumar Kapoor working in the Engineering Department in the State of Himachal Pradesh. Shri Ashwani Kumar Kapoor happened to be an attesting witness to the will propounded by the defendants. The appellants' case is that Shri Ashwani Kumar Kapoor made a written request to his superior for grant of casual leave and also for permission to leave the station to enable him to appear in court. In response to the said request the Executive Engineer concerned by an endorsement dated 18-2-2006 declined the permission prayed for on the ground that H.P State Assembly was in session. The appellants' case is that since the witness was a government official and since his immediate officer had declined casual leave and leave to go out of station, the witness could not be present for getting his deposition recorded on 21-2-2006 when the trial court closed the evidence of the appellant-defendants.
4. Aggrieved by the said order, the appellants preferred CMPMO No. 54 of 2006 before the High Court of Himachal Pradesh at Shimla which was summarily rejected by the High Court without so much as recording any reason in support of the said order. The present appeal assails the correctness of the said order as already noticed above.
5. Appearing for the appellants, Mr Agrawala strenuously contended that closure of the evidence by the trial court and the dismissal of the appellants' challenge to the said order by the High Court is wholly unjustified causing grave failure of justice and requiring interference by this Court under Article 136 of the Constitution. He argued that the trial court and so also the High Court had failed to appreciate the circumstances in which Shri Ashwani Kumar Kapoor was revented from appearing as an attesting witness to the will. He drew our attention to the order passed by the Engineer-in-Chief, PWD, Shimla directing all Superintendent Engineers to ensure that nobody leaves the headquarters till the tenth session of the H.P State Vidhan Sabha between 21-2-2006 to 7-4-2006 is over and to make special arrangements for sending replies pertaining to Vidhan Sabha business to avoid delay.
6. It was according to Mr Agrawala, pursuant to the said instructions that the Executive Engineer had declined the leave applied for by Shri Ashwani Kumar Kapoor which had resulted in his non-appearance before the court below. Inasmuch as the court had failed to appreciate the circumstances in the background whereof Shri Ashwani Kumar Kapoor had not been produced and it has committed a mistake causing failure of justice especially when Shri Ashwani Kumar Kapoor was the only attesting witness to the will propounded by the defendants.
7. There is considerable merit in the submission made by Mr Agrawala. Shri Ashwani Kumar Kapoor is an attesting witness to the will which the defendant-appellants herein have set up in their defence. Non-examination of the said witness would, therefore, seriously affect their case. We cannot lose sight of the fact that the witness could not be produced not because of any deliberate neglect or inaction on the part of the appellants herein but on account of the refusal of casual and station leave prayed for by him. In the circumstances, interest of justice would be substantially served if a final opportunity is given to the appellants to produce the witness.
8. In the result this appeal is allowed, the order passed by the High Court and that passed by the trial court are set aside and the matter remitted back to the trial court with the direction that the appellants shall be permitted to produce Shri Ashwani Kumar Kapoor as a witness in support of their case by issuing summons directly to the witness as also through his immediate officer. Service of the summons shall be the responsibility of the appellants. We further direct that since the order closing the evidence of the appellants has been set aside by us, the appellants shall be free to examine any other witness in support of their case who is cited in the list already filed by them but who has not been produced so far. The production of any such witnesses shall, however, be the responsibility of the appellants. The parties to bear their own costs.
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