S. No. 57 Regular Cause List INTHE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) 53/2020 ATTA MOHAMMAD DAR …Appellant(s)/Petitioner(s) Through: Mr. M. Ashraf Malik, Advocate with Ms. Syed Soliha Jan, Advocate Vs. GHULAM NABI DAR AND ORS. ...Respondent(s) Through: Mr. Syed Wasiq, Advocate CORAM: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL-JUDGE ORDER 22.05.2025 1. Through the medium of this petition, the petitioner is seeking setting-aside of the Order dated 07.02.2020 passed by the court of Munsiff, JMIC, Anantnag, in a suit titled as Atta Mohammad and another vs. Gh. Nabi and others. 2. A suit has been filed by the plaintiff, petitioner herein, before the court of Munsiff, Anantnag, for declaration, partition and possession. Defendants, respondents herein, filed their written statement. Trial Court framed issues and directed plaintiff to produce evidence. 3. By order dated 08.03.2019, Trial Court closed plaintiff’s right to adduce evidence. Review thereof was sought. However, his application was rejected vide order impugned. Aggrieved thereof, petitioner has filed instant petition. 4. According to plaintiff/petitioner, after framing of issues, the Trial Court directed him to produce evidence, upon which he promptly furnished list of witnesses, but by order dated 08.03.2019, Trial Court closed his right to adduce evidence despite plaintiff having already submitted examination- in-chief the witnesses including himself on affidavits. It is being stated that adducing of evidence is of utmost importance in order to come to a just and fair decision in a civil suit inasmuch as Trial Court did not exhaust all remedies to ensure presence of witnesses as provide by the Code of Civil Procedure, like imposing exemplary and punitive costs for their non- appearance before taking extreme step of closing the right. Reference is being made to SBI vs. Chandra Govingji, (2000) 8 SCC 532, and Salem Bar Association vs. Union of INdia (2005) 6 SCC 344, wherein it was held that even if an adjournment is sought on valid or reasonable grounds it cannot be refused by the court on the sole ground that pervious adjournment was granted as last chance. It is also being stated by petitioner that his brother at the time of closing of his right to adduce evidence was diagnosed with chronic kidney disease, as such, he had a reasonable cause to seek more time from the Trial Court. It is being claimed that witnesses were in attendance at the time of closing of right but due to lawyers’ strike they could not be advised by their counsel. 5. Prayer made in this petition is being objected by the counsel for the respondents on the ground that petitioner has not challenged the basic order of closure of the evidence, but has called in question order passed in the review, therefore, powers under Article 227 of Constitution of India could not be exercised, therefore, prayed for dismissal of the instant petition. 6. It is not in dispute that the evidence in the shape of affidavits on behalf of the plaintiff and two witnesses has been filed before the Trial court. It is also not in dispute that the said witnesses have not been put to cross- examination. 7. Record of the Trial court has been perused. It would appear from the perusal of the Trial court record that after the affidavits were filed in evidence by plaintiff on his behalf and on behalf of his two witnesses and on the same day the witnesses had been present in the court but they could not be cross-examined because of the absence of the defendants. The order would also show that the costs had been imposed on the defendants because they could not cross-examine the witnesses present in the court. Again, thereafter, though the plaintiff was present but other witnesses were not present. Trial court without asking him to offer himself for cross- examination or defendant choosing to cross-examine the witnesses provided last opportunity to the plaintiff to produce the evidence and on the next very day though the plaintiff was present, the evidence came to be closed on the plea that he failed to produce the witnesses despite last opportunity granted. On the day when the evidence was closed though the plaintiff was present yet he was not cross-examined nor was there anything on record or in the order that the defendant opted to cross-examine him on that date and he refused. 8. The order, closing the evidence of plaintiff, is simple that witnesses could not be produced, therefore, right to adduce evidence came to be closed. Once the affidavits have been filed, defendants have choice as to whether cross-examine the witnesses or not and in case they refuse, Trial Court has to pass orders. Even, otherwise Trial court ought to have asked the plaintiff to produce the evidence and give him a chance and also make an offer to defendant to cross-examine the plaintiff when the plaintiff was present in the court. 9. The Trial court, when the review petition was filed, ought to have considered it and given opportunity to the plaintiff to appear and produce the witnesses whose affidavits were already on record, to offer themselves for cross-examination which has not been done. The way the Trial court has proceeded and passed order(s) closing right of plaintiff to get his witnesses cross-examined, miscarriage of justice has been done, so demand of justice would be that the petitioner is allowed to produce the witnesses, himself and the witnesses whose affidavits have been filed for cross-examination before the Trial court and any other witness who have been listed are produced and examined before the Trial court. 10. Having regard to the manner in which the Trial court has proceeded in the case, this Court shall not shut its eyes and decline grant of relief as prayed for by him in the instant petition under Article 227 of the Constitution of India. This Court has to see while exercising powers under this Article 227 that the purpose of ends of justice is served is achieved. Wrong order has been passed by the Trial court, if allowed to stand, it will cause injustice and it is in such situation, the powers under Article 227 of Constitution of India are to be exercised. Therefore, objection raised by the learned counsel for the respondents is rejected. 11. Article 227 is to be invoked by the High Court in the backdrop of superintendence, inter alia, on the grounds of preventing abuse of process of law, preventing miscarriage of justice, preventing grave injustice, and establishing both administrative as well as judicial power of the High Court inasmuch as it possesses supervisory jurisdiction under Article 227, allowing it to intervene in cases where subordinate courts act illegally or beyond their jurisdiction. This power can be exercised even if the order in question has not been formally challenged. The High Court is duty bound to correct orders of subordinate courts that would cause injustice. 12. Therefore, while allowing this petition, orders passed by the Trial court, closing the right of plaintiff to adduce evidence as also dismissing his review petition, are set-aside. 13. Trial court shall give two opportunities to plaintiff to produce himself and other witnesses for cross-examination and in case he files any list of further witnesses which has not been submitted till date and/or examined, such witnesses shall be produced within one month. It is made clear that the evidence of the plaintiff shall stand closed after one month and the one month, for that purpose, will commence from 30.06.2025. 14. In the event, defendants remain absent on the day when the witnesses are produced it shall be presumed that they do not want to cross-examine the witnesses. 15. Parties shall cause their appearance before the Trial court on 30.06.2025 and on that date, the Trial court shall take up the matter for consideration as said above. 16. Disposed of along with connected CM(s). (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 22.05.2025 “Imtiyaz” Imtiyaz Ul Gani I attest to the accuracy and authenticity of this document 30.06.2025 09:40