IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.142 of 2026 Decided on: 02.07.2026 Premi Devi ….Petitioner Versus Mehar Singh & others ...Respondents Coram Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? For the petitioner: Mr. Ashok Kumar Verma, Advocate. For the respondents: Mr. Parveen Chandel & Mr. Sahil Singh Thakur, Advocates, for respondent No.1 to 4. Romesh Verma, Judge (Oral) The instant petition arises out of judgment as passed by learned District Judge, Bilaspur, dated 24.02.2026, whereby civil miscellaneous appeal under Order 43 Rule 1(r) of CPC preferred by the present petitioner/defendant No.5 was dismissed as not maintainable and the order as passed by Learned Civil Judge, Jhandutta, District Bilaspur, H.P. dated 30.09.2024 was upheld. 2. The facts as emerge in the present case are that the plaintiffs/respondents filed a suit for declaration to the effect that plaintiffs No. 1 to 3 and proforma defendant No.11 are co-owners in joint possession of the land measuring 1 bigha, comprised in 2 Khasra No.338/164, Khewat No.100, Khatauni No.113 by virtue of exchange with land measuring 1 bigha, out of total land measuring 1-16 bigha, Khasra No.181 min, Khatauni No.119, situated at village Dahad Pargna Geharwein, Tehsil Jhanduta, District Bilaspur, H.P. and the revenue entries contrary to the same are illegal and wrong. It was prayed that the declaration be passed in favour of the plaintiffs that the sale deed executed by defendant No.2 in favour of defendant No.5 in respect of the land measuring 6 biswa out of Khewat No.100 min, Khatauni No.113 and Khasra No.339/164, as mentioned in the sale deed, situated at village Dahad, Pargna Geharwein, Tehsil Jhandutta, District Bilaspur, H.P. is illegal, null and void. Further, the plaintiffs prayed for the passing of decree for permanent prohibitory injunction restraining the defendants from changing the nature of the suit land. In the alternative, suit for possession by dismantling the construction as raised by the defendants over any part of the suit land. 3. Notices of the suit were issued for the service of the defendants and they were duly served for 04.10.2021. On the said date, the present petitioner/defendant No.5 was served, however, no one appeared on her behalf. Therefore, she was proceeded against ex-parte on that very day. The present petitioner/defendant No.5 filed an application under Order 9 Rule 3 7 of CPC for setting aside ex parte order and the same came to be allowed by the learned Civil Judge, Jhandutta, District Bilaspur on 20.05.2024. The said application was allowed, subject to payment of costs of Rs.1,000/-. Thereafter, the present petitioner/defendant No.5 filed application under Section 151 of CPC on 19.06.2024 for recalling the PWs for their cross- examination in the above mentioned case on behalf of defendant No.5. Learned trial Court, vide its order dated 30.09.2024, dismissed the application. 4. Feeling dissatisfied, the present petitioner/defendant No.5 preferred an appeal in the Court of learned District Judge, Bilaspur on 22.10.2024. The learned first appellate Court vide its judgment dated 24.02.2026 dismissed the said appeal as not maintainable. 5. The petitioner/defendant No.5 has invoked the provisions of Article 227 of the Constitution of India against the order, whereby the prayer of the petitioner for recalling of PWs for cross-examination has been rejected. 6. It is contended by Mr. Ashok Kumar Verma, learned counsel for the petitioner, that the impugned order as passed by learned Courts below are erroneous and liable to be quashed and set aside. 4 7. On the other hand, Mr. Praveen Chandel, learned counsel for the respondents, has contended that the impugned order is valid and reasonable and does not call for any interference in the present proceedings. 8. I have heard learned counsel for the parties and gone through the case file. 9. Admittedly, present petitioner/defendant No.5 was served in the main suit on 04.10.2021 and on the very same day, since no one appeared on her behalf, she was proceeded against ex parte. Thereafter, the petitioner filed an application under the provisions of Order 9 Rule 7 of CPC for setting aside the said order. The said application was allowed on 20.05.2025, subject to payment of costs of Rs.1,000/-. Admittedly, the ex parte order has been set aside by the learned trial Court, meaning thereby the defendant No.5 has been relegated to the very same stage at which she was proceeded against ex parte. Therefore, certainly she has the right to cross-examine the PWs, who have been examined by the plaintiffs in support of their contentions. 10. Learned trial Court has primarily dismissed the application of the petitioner on the ground that while allowing the application under Order 9 Rule 7 of CPC, the Court had imposed costs of Rs.1,000/- on the petitioner, but she had failed to pay the said costs. This Court has been informed by learned counsel for 5 the petitioner that the said costs stands paid to the respondents. Further, the learned trial Court came to the conclusion that after availing two opportunities, and since the case was old and targeted, the present petitioner had filed the application to recall the plaintiffs’ witnesses to cross-examine them. 11. This Court is of the considered opinion that the approach adopted by the learned trial Court is hyper technical. Once, the application filed by the present petitioner/defendant No.5 for setting aside the ex parte order came to be allowed, then certainly, defendant No.5/petitioner is well within her right to cross-examine the witnesses as examined by the plaintiffs. Therefore, this Court has no other option, but to quash and set aside the impugned judgment dated 24.02.2026, whereby learned District Judge upheld the order passed by learned Civil Judge, dated 30.09.2024 and the application filed by the petitioner under Section 151 of CPC for recalling of PWs for their cross- examination is allowed. 12. Consequently, the present petition is allowed, subject to payment of costs of Rs.7,500/- to be paid to the respondents/plaintiffs on the date already fixed by learned trial Court. It is made clear that in case the costs is not paid to the respondents on the next date of hearing, which has already been 6 fixed by the learned trial Court, the benefit of the order shall not be applicable to the petitioner/defendant No.5. 13. Needless to say, no unnecessary adjournment shall be granted by the learned trial Court to the present petitioner/defendant No.5 while cross-examining the witnesses of the plaintiffs. 14. Pending application(s), if any, shall also stand disposed of. ( Romesh Verma ) Judge July 02, 2026