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2025 DAILYLAW 13813 (HP)

BIRU deceased thorugh LRs v. VED RAM

CMP/10766/2022 · 2025-04-22

Bipin Chander Negi

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

Biru (deceased) through LRs Vs. Ved Ram & Others. CMP No.10766 of 2022 in RSA No.605 of 2005 22.04.2025 Present: Mr. Sanjeev Kuthiala, Sr. Advocate with Mr. Dhruv Kuthiala, Advocate, for the appellants. Mr. Raman Sethi, Advocate, for respondent No.1. Mr. Ashok Kumar, Advocate, vice Mr. Karan Singh Kanwar, Advocate, for respondent No.2. CMP No.26429/2024 in RSA No.605/2005 Vide judgment dated 10.03.2022, the appeal bearing No.605 of 2005, in the case at hand, had been held to have abated. Thereafter, CMP(M) No.1057 of 2022 was filed for setting aside the abatement, in the case at hand, as is evident from order dated 03.08.2023. On the basis of the pleadings in the aforesaid application, for setting aside abatement, issues were framed on 04.01.2024. Subsequent thereto, the matter was listed for recording of evidence of the applicants. Since steps for their service were not taken, vide order dated 16.07.2024 further time was granted to the applicants for taking steps for production of witnesses. Yet again, no steps were taken, hence as one last opportunity on 23.09.2024 to produce witness was given to the applicants. It was made clear in the said order, if no steps are taken within ten days, then right to lead evidence would stand closed. Vide order dated 12.11.2024, the applicants were granted yet another opportunity to lead evidence by way of an indulgence. The same was to be filed by way of an affidavit, subject to payment of cost of Rs.5000/-. Yet again, it was made clear that no further opportunity for leading evidence would be granted. Despite the indulgence shown, no steps for summoning the applicants’ witnesses were taken neither the costs were deposited nor any evidence by way of affidavit was filed on behalf of the applicants. Relevant extract of CMP(M) No.1057 of 2022 is reproduced hereinbelow:- “That however, since the suit land, by virtue of a family arrangement has been given to one of the son namely Sh. Nokhu Yashpal and the wife, sons and daughters of deceased Biru, (appellant) have no objection to the same. The mutation of the family arrangement had also been attested in favour of Nokhu Yashpal. As such for the purpose of present appeal as also for further pursuing the matter with respect to the suit land, the competent person is Nokhu Yashpal, but the Power of Attorney on behalf of all the legal representatives is being filed along with this application.” From the aforesaid, it is evident that Power of Attorney was filed on behalf of all the legal representatives despite the fact that in the application, it had been alleged that it was only Sh. Nokhu Yashpal on whom by virtue of a family arrangement, the entire property had been bequeathed. The details of legal heirs had been provided in para 6 of the application. In the aforesaid backdrop, learned counsel for the applicants submits that by virtue of the present application, he is seeking leave of the Court for determination of Power of Attorney filed on behalf of legal heirs of deceased sole-appellant. For the reasons stated in the application, signed by the counsel, application is allowed. Power of Attorney inter se the counsel and the legal heirs of deceased appellant-Biru is determined and the counsel is permitted to withdraw from the present proceedings. Application stands disposed of. CMP(M) No.1057 of 2022 Pleadings in the application are complete. Based on the pleadings, issues were framed on 04.01.2024. Subsequent thereto, in order to substantiate the averments therein no evidence has been led despite numerous opportunities having been afforded. In view thereof, delay in bringing on record LRs of deceased appellant cannot be condoned and the abatement order passed, in the case at hand, vide judgment dated 10.03.2022 cannot be set aside. Application stands dismissed. CMP No.87/2025 in RSA No.633/2005 Vide judgment dated 10.03.2022, the appeal bearing No.605 of 2005, in the case at hand, had been held to have abated. Thereafter, CMP(M) No.1059 of 2022 was filed for setting aside the abatement, in the case at hand, as is evident from order dated 03.08.2023. On the basis of the pleadings in the aforesaid application, for setting aside abatement, issues were framed on 04.01.2024. Subsequent thereto, the matter was listed for recording of evidence of the applicants. Since steps for their service were not taken, vide order dated 16.07.2024 further time was granted to the applicants for taking steps for production of witnesses. Yet again, no steps were taken, hence as one last opportunity on 23.09.2024 to produce witness was given to the applicants. It was made clear in the said order, if no steps are taken within ten days, then right to lead evidence would stand closed. Vide order dated 12.11.2024, the applicants were granted yet another opportunity to lead evidence by way of an indulgence. The same was to be filed by way of an affidavit, subject to payment of cost of Rs.5000/-. Yet again, it was made clear that no further opportunity for leading evidence would be granted. Despite the indulgence shown, no steps for summoning the applicants’ witnesses were taken neither the costs were deposited nor any evidence by way of affidavit was filed on behalf of the applicants. Relevant extract of CMP(M) No.1059 of 2022 is reproduced hereinbelow:- “That however, since the suit land, by virtue of a family arrangement has been given to one of the son namely Sh. Nokhu Yashpal and the wife, sons and daughters of deceased Biru, (appellant) have no objection to the same. The mutation of the family arrangement had also been attested in favour of Nokhu Yashpal. As such for the purpose of present appeal as also for further pursuing the matter with respect to the suit land, the competent person is Nokhu Yashpal, but the Power of Attorney on behalf of all the legal representatives is being filed along with this application.” From the aforesaid, it is evident that Power of Attorney was filed on behalf of all the legal representatives despite the fact that in the application, it had been alleged that it was only Sh. Nokhu Yashpal on whom by virtue of a family arrangement, the entire property had been bequeathed. The details of legal heirs had been provided in para 6 of the application. In the aforesaid backdrop, learned counsel for the applicants submits that by virtue of the present application, he is seeking leave of the Court for determination of Power of Attorney filed on behalf of legal heirs of deceased sole-appellant. For the reasons stated in the application, signed by the counsel, application is allowed. Power of Attorney inter se the counsel and the legal heirs of deceased appellant-Biru is determined and the counsel is permitted to withdraw from the present proceedings. Application stands disposed of. CMP(M) No.1059/22 in RSA No.633/2005 Pleadings in the application are complete. Based on the pleadings, issues were framed on 04.01.2024. Subsequent thereto, in order to substantiate the averments therein no evidence has been led despite numerous opportunities having been afforded. In view thereof, delay in bringing on record LRs of deceased appellant cannot be condoned and the abatement order passed, in the case at hand, vide judgment dated 10.03.2022 cannot be set aside. Application stands dismissed. All other applications also stand disposed of. (Bipin C. Negi) Judge 22nd April, 2025 (Gaurav Rawat)