2026:HHC:27525 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 323/2026 Decided on: 29.06.2026 Anil Kumar …..Petitioner Versus Kanta Thakur (deceased ) through his LRs & ors. …Respondents _______________________________________________________________ Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Karan Singh Kanwar, Advocate. For the Respondents: Nemo. Romesh Verma, Judge (oral) The instant petition arises out of order, dated 16.02.2026, as passed by the learned Senior Civil Judge, Nahan, District Sirmaur, whereby an application filed by the plaintiff/petitioner under the provisions of Order 18 Rule 3(A) of CPC came to be dismissed. 2 The facts, as emerge in the instant case, are that the plaintiff/petitioner filed a suit for declaration with consequential relief of permanent injunction against the defendants/respondents before the learned trial Court on 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 24.03.2016. As per averments as made in the plaint, the suit property is comprised in Khatauni No.53/63, Kitas-5, measuring 00-08-26 hect., Khata Khatauni No.270/360 Kita-2 measuring 00-03-83 hect. and Khata Khatauni No. 97/127 Kita-5 measuring 00-01-96 hect., situated at Mohal Cantt. Shamsherpur Nahan. Smt. Devwati Devi, mother of the parties to the suit, was owner in possession of the suit property, which she had inherited from her mother Smt. Sharda Devi. After the death of Smt. Devwati Devi the plaintiff/petitioner is owner in possession of the same and the defendants have got no right, title or concern with the suit property. Defendant No.1 never looked after or maintained the mother as she was not having any visiting terms with the plaintiff or her mother. Defendant No.2 remained out of Nahan in connection with his services along with his family members, thus the plaintiff was the only family member, who looked her mother Smt. Devwati Devi during her life time. 3 As per plaintiff, defendant No.1, who is a very clever and quarrelsome lady procured a forged and fabricated Will qua the suit property in connivance with the marginal witnesses, scribe and Notary Public on 27.11.2013 alleged to have been executed by Smt. Devwati Devi and the same was produced before the A.C. IInd Grade, Nahan. The said will was not signed by Devwati Devi and she was not in a sound disposing mind at 3 that time and further there was no necessity to execute a Will. Therefore, it was prayed that the plaintiff is exclusive owner in possession of the suit property on the basis of a legal and valid Will, dated 2.2.2002, executed by late Smt. Devwati Devi in favour of the plaintiff/petitioner; the alleged Will, dated 27.11.2013, alleged to have been executed by Devwati Devi in favour of defendant No.1 is a forged, fabricated and result of fraud; and revenue entries on the basis of will, dated 27.11.2013 and mutation No. 395 are liable to be declared as null and void and not binding upon the rights, title or interest of the plaintiff/petitioner. Injunction was also sought by the plaintiff/petitioner against the defendants. 4 The suit was contested by defendant No.1 by filing written statement, wherein preliminary objections qua maintainability, cause of action etc. were raised. On merits, it was averred that the late Devwati Devi inherited the suit property from her mother late Sharda Devi. It was denied that the plaintiff No.1/petitioner is exclusive owner in possession of the suit property. Plaintiff No.2, Kumari Ritu Devi and defendants No. 1 and 2 and plaintiff No.1 were born to late Smt. Devwati Devi, while she was residing in the suit property. Defendant No.1 got married in the year 1981 and did not leave possession of the suit property because she had been on visiting terms with her mother 4 and in the year 2001, she raised her house and continuously residing in the suit property. 5 It was stated that the alleged will, dated 2.2.2002 was result of fraud, undue influence and force used against Smt. Devwati Devi. She had executed her last Will on 27.11.2013 in presence of two marginal witnesses, scribe and Notary Public. At the relevant time, she was having sound state of mind and the will was prepared out of free will and desire in favour of her children by giving them equal share in the suit land without any influence, misrepresentation or coercion. Therefore, defendant No.1 sought dismissal of the suit. 6 The plaintiff No.1/petitioner filed replication to the written statement, wherein averments as made therein were denied and averments as made in the suit were reiterated. 7 During the pendency of the suit, after framing issues when the evidence of the parties started, an application came to be filed by the plaintiff under the provisions of Order 18 Rule 3 A CPC read with Section 151 CPC, wherein it was averred that the case was fixed for evidence of the plaintiff and one witness Jitender Thakur had already been examined through Local Commissioner as appointed by the Court. The summoned witness was examined in the Court and was also cross-examined by the defence counsel, but while examining the plaintiff, the 5 defence counsel raised objection that he would not examine the plaintiff and stated that the plaintiff should have been examined earlier to the above examined witnesses. Therefore, prayer was made that the plaintiff be permitted to make the statement in the case after the examination of his witnesses in the interest of justice. 8 The application under Order 18 Rule 3A of CPC came to be resisted by the defendants by filing reply, wherein preliminary objection was raised that the application is not legally maintainable as the same pertain to filing of the written arguments by a party to a lis, whereas in the application the plaintiff has racked up some different story. On merits, it was averred that when the plaintiff Anil Kumar was being examined, the counsel for the defendants had raised objections that he should have been examined as first witness and after examination of other material witnesses he cannot be allowed to examine himself, as the very purpose of cross examination would be frustrated causing irreparable prejudice to the case and defence of the defendants. It was further averred that while Mohd. Iqbal was being examined, plaintiff No.1/petitioner remained present standing by his side in the Court and heard each and every part of his cross examination. The plaintiff was also present when Jitender Singh was examined throughout the proceeding 6 alongwith Senior Counsel Mr. N.A. Sheikh Advocate and heard his entire cross-examination. Thus, it was prayed that under these circumstances, conduct of the plaintiff No.1/petitioner has caused serious prejudice to the defence of the defendants, therefore, the application deserves to be rejected. 9 The learned trial court vide impugned order, dated 16.02.2026 dismissed the said application, as filed by the plaintiff /petitioner. 10 Feeling dissatisfied, the plaintiff /petitioner has approached this Court by filing the instant petition under article 227 of the Constitution of India. 11 It is contended by Mr. Karan Singh Kanwar, learned counsel for the petitioner that the impugned order, as passed by the learned trial court, is erroneous and thus, liable to be quashed and set aside. He has submitted that after allowing the application under Order 18 Rule 3A of CPC, the plaintiff /petitioner may be permitted to make statement after examination of his witnesses. 12 I have heard the learned counsel for the petitioner and have also gone through the material available on record. 13 Factual matrix, as emerges from the documents and as placed on record, would reveal that the plaintiff filed a suit for declaration with consequential relief of permanent injunction 7 before the learned trial court. The defendants by filing written statement contested the suit and sought dismissal of the suit. When the case was fixed for examination of the plaintiff and some of the witnesses were examined, the instant application under Order 18 Rule 3A of CPC came to be filed. 14 The very basic defence and objection to the aforesaid application, which has been raised by the defendants/respondents is that when the plaintiff was being examined, learned counsel for the defendants raised an objection that the plaintiff should have been examined as first witness and after examination of his summoned witnesses, he cannot be permitted to examine himself as the very purpose of his cross examination would be frustrated. It has been stated that while Mohd. Iqbal was being examined, plaintiff No.1/petitioner remained standing by his side in the Court and heard each and every part of his cross examination. It is further case of the defendants/respondents when Jitender Singh was examined, the plaintiff remained present throughout the proceeding alongwith Senior Counsel Mr. N.A. Sheikh Advocate and heard his entire cross-examination. In case the application, as filed by the plaintiff is allowed, in that event, serious prejudice shall be caused to the defence of the defendants. 8 15 In the present case, dispute primarily revolves around two Will, dated 27.11.2013 and 2.2.2002. 16 Learned trial court has already framed issues and evidence of the plaintiff has started. It has come on record that despite direction of the Court on 4.12.2025 to leave the Court, as witness was to be examined, the plaintiff /petitioner did not leave the Court and continued to stand inside the Court and he heard the entire cross-examination of the witnesses to the Will. The objections as raised by the defendants/respondents are legal and valid once the dispute inter se the parties pertains to will, therefore, his remaining present in the Court despite the specific order to leave the Court, but as noticed above the petitioner did not obey the direction of the Court and stood in the Court and heard the entire cross-examination of the witnesses to the Will. The learned trial court has rightly exercised jurisdiction by dismissing the application. 17 It has already come on record that while examining witnesses of the plaintiff, the plaintiff himself remained present inside the Court, therefore, certainly prejudice would be caused to the defence of the defendants and very purpose of cross- examination shall be defeated in case the prayer of the plaintiff /petitioner is allowed and the rights of the parties shall be affected in that regard. 9 18 The learned trial court has rightly passed the impugned order and the same does not suffer from any infirmity or illegality, therefore, while invoking provisions of Article 227 of the Constitution of India, this Court will not disturb the well reasoned order, as passed by the learned trial Court. 19 In Civil Appeal No(s).13801 of 2025, titled as Shri Digant vs M/s P.D.T. Trading Co. & others, the Hon’ble Supreme Court while dealing with petition under Article 227 of Constitution of India has laid down parameters. The relevant paragraph thereof reads as under:- 22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three-Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors. 1 This Court held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.” 10 23. In the case on hand, the appellate court had considered whether the proceeding in detail the issue as to court was justified in trial with the case, without further notice to the defendants, after submission of pursis (Exh.42) by defendants’ counsel, claiming no instructions. After a threadbare analysis and taking into consideration surrounding circumstances, the appellate court held that the trial court had committed no wrong proceeding with the matter court representing with noticed the the that defendants matter. The appellate Court noticed that the advocate representing the defendants had claimed no instructions but not sought withdrawal of his Vakalatnama and the matter thereafter remained pending for over three months till it was decided in March 2015. In between no effort was made by the defendants to engage another lawyer. Moreover, the defendants did not come up with a case that their lawyer’s notice was not served on them therefore, they could not engage another counsel Besides that, the record also indicated that the intention of the defendants was to delay the proceedings because earlier also the suit had proceeded ex parte against them though, later, those orders were recalled. Therefore, in our view, once the appellate court took into consideration all relevant aspects including the fact that pursis (Exh.42) did not seek withdrawal of the Vakalatnama, and withdrawal was not even permitted, there was no such jurisdictional error which warranted exercise of powers under Article 227 of the Constitution of India. The High Court without any justification procedure went consider the procedure prescribed for withdrawal Vakalatnama when neither withdrawal of Vakalatnama was permitted by the Trial Court nor the pursis prayed for its withdrawal. In such circumstances, the entire exercise of the High Court was 11 misconceived. More so, when the view taken by the appellate Court that defendant cannot take advantage of his own wrong was a plausible view based on materials available on record. Hence, in our view, appellate court’s order was not amenable to interference in exercise of jurisdiction under Article 226/227 of the Constitution of India. The High Court clearly exceeded its jurisdiction under Article 2278 of the Constitution in interfering with well reasoned order of the appellate Court.” 20 Similar exposition of law has been laid down by the Hon’ble Supreme Court in case titled as Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181, wherein in paras 15 and 16, it has been held as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no 12 reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:- "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to. 13 19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May, 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt 30 that the application for setting aside the ex-parte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.” 14 21 Taking into consideration the aforesaid exposition of law, as laid down by the Hon’ble Supreme Court, this Court is of the considered opinion that there is no perversity or jurisdictional error in the impugned order, as passed by the Court below. 22 Consequently, the present petition being devoid of any merit is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs. 23 Any expression of opinion, hereinabove, shall have no bearing on the merits of the case and shall be deemed to have been made only for the purpose of disposal of instant petition. (Romesh Verma) 29th June, 2026 Judge (pankaj)