Janab Iqbal Ahmad Kureshi Ors v. Haji Altaf Ahmad Kureshi Anr

Ikrar Ahmad S/o Late Shri Iqbal Ahmad, Aged About 21 Years, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, Jaipur (Rajasthan). Irfan Ahmad S/o Late Shri Iqbal Ahmad, Aged About 19 Years, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, Jaipur (Rajasthan). 1/4. Kumari Anjum D/o Late Shri Iqbal Ahmad, Aged About 17 Years, Through Her Natural Guardian Mother Husna Bano, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, Jaipur (Rajasthan). 1/5. Kumari Rukhsaar D/o Late Shri Iqbal Ahmad, Aged About 12 Years, Through Her Natural Guardian Mother Husna Bano, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, Jaipur (Rajasthan). 1/6. Kumari Rahnuma D/o Late Shri Iqbal Ahmad, Aged About 9 Years, Through Her Natural Guardian Mother Husna Bano, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, Jaipur (Rajasthan). 1/7. Imran S/o Late Shri Iqbal Ahmad, Aged About 8 Years, Through Her Natural Guardian Mother Husna Bano, R/o V V -72, Van Vihar, Idgah Colony, Delhi Bye Pass Road, (2 of 5) [CFA-301/2020] Jaipur (Rajasthan). Versus ----Appellants

1. Haji Altaf Ahmad Kureshi S/o Shri Abdul Hakim, R/o House Number 1, 2 And 3, Ghat Ki Ghuni, Agra Road, Jaipur (Rajasthan)

2. Shakira Kureshi D/o Shri Babu Kureshi, Aged About 50 Years, R/o House Number A-1, A-2 And A-3, Shanti Colony, Ghat Ki Ghuni, Agra Road, Jaipur (Rajasthan) ----Respondents For Appellant(s) : Dr. Ramdeo Arya, Adv. Ms. Poonam Mishra, Adv. For Respondent(s) : Mr. Manak Chand Jain, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA 17/01/2025 Order The present civil regular appeal under Section 96 of CPC has been filed by the appellants-plaintiffs (for short ‘the plaintiffs’) against the judgment dated 22.10.2019 passed by the Additional District Judge No.7, Jaipur Metropolitan City, Jaipur (for short ‘the trial court’) in Civil Original Suit No.217/2011 titled as “Janab Iqbal Ahmad Kureshi & Ors. Vs. Haji Altaf Ahmad Kureshi & Anr.” whereby the suit filed by the plaintiffs for partition and permanent injunction has been dismissed. Learned counsel for the plaintiffs submits that the plaintiffs filed a suit for partition and permanent injunction against the defendants-respondents (for short ‘the defendants’) in which the defendants filed the written statements. (3 of 5) [CFA-301/2020] The trial court on the pleadings of the parties, framed the following issues:- 1- D;k oknhx.k izfroknhx.k ds fo:) ikfVZ”ku dh fMdzh ds fy;s vf/kdkjh gS fd okni= ds iSjkxzke uEcj 1 ¼d½¼[k½¼x½esa of.kZr lEifRr esa oknhx.k dk 1@2 vfoHkkftr fgLls dk ehV~l ,.M ckm.M~l ds vk/kkj ij foHkktu fd;k tkdj 1@2 fgLls dk dCtk oknhx.k dks fnyok;k tkos\ 2-& D;k oknhx.k izfroknhx.k ds fo:) LFkkbZ fu’ks/kkKk dh fMdzh ds fy;s vf/kdkjh gS fd fookfnr lEifRr dks fcuk foHkktu ds fdlh vU; dks fodz; djus ls rFkk oknhx.k ds mi;ksx miHkksx esa ck/kk Mkyus o ifjorZu djus ls fuf’k) jgsa\ 3& D;k oknhx.k ds }kjk de dksVZ Qhl vnk dh xbZ gS] blfy;s nkok [kkfjt fd;s tkus ;ksX; gS\ 4& D;k nkok fe;kn ckgj gS\ 5& D;k nkok dkuwuu eSUVsuscy ugha gksus ls [kkfjt fd;s tkus ds ;ksX; gS\ 6& D;k izfroknh Lis”ky dksLV 50]000@&:i;s ds fy;s mRrjnk;h gS\ 7& fjyhQ\ To prove their case, the plaintiffs filed an affidavit of PW-1 Husana Bano in evidence, but when she could not appear before the trial court for cross-examination, her evidence was inadmissible. Learned counsel for the plaintiffs also submits that due to unavoidable reasons, the plaintiffs could not adduce the evidence before the trial court. Resultantly, the trial court closed the evidence of the plaintiffs. The plaintiffs filed an application under Section 151 CPC for re-opening the evidence, but the trial court vide order dated 20.09.2019 dismissed the said application filed by the plaintiffs. Learned counsel for the plaintiffs also submits that being aggrieved by the said order dated 20.09.2019, the plaintiffs filed civil writ petition before this Court but unfortunately before hearing the said writ petition, the trial court arbitrary decided the (4 of 5) [CFA-301/2020] suit by way of impugned judgment and decree dated 22.10.2019. Learned counsel for the plaintiffs further submits that one more opportunity may be given to the plaintiffs for adducing the evidence before the trial court so that, the plaintiffs may prove their case. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiffs and submitted that the trial court had already granted ample opportunities to the plaintiffs to adduce the evidence for proving their case but they failed to adduce the same. So, the trial court rightly closed the evidence of the plaintiffs and decided the suit vide impugned judgment and decree dated 22.10.2019. So, the present petition being devoid of merit, is liable to be dismissed. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the defendants. It is an admitted position that the trial court had already granted ample opportunities to the plaintiffs for adducing the evidence but they could not adduce the same before the trial court. So, their evidence was not recorded and trial court closed the plaintiffs’ opportunity to adduce the evidence. In the interest of Justice, I deem it just and proper to grant an opportunity to the plaintiffs to adduce the evidence before the trial court subject to payment of cost of Rs. 10,000/- by the plaintiffs to the defendants. Accordingly, petition filed by the plaintiffs is allowed. The judgment and decree dated 22.10.2019 passed by the trial Court is set-aside. The trial court is directed to grant only one (5 of 5) [CFA-301/2020] opportunity to the plaintiffs to adduce the evidence before the trial court, subject to deposition of cost of Rs.10,000/- by the plaintiffs to the defendants, failing which no opportunity shall be granted by the trial Court to the plaintiffs to adduce the evidence. If the cost as aforesaid is paid by the plaintiffs to the defendants, and/or tendered in the court, the plaintiffs submit their evidence before the trial court, trial Court shall decide the suit afresh after giving opportunity of hearing to both the parties and after taking into consideration the evidence of both the parties, in accordance with law. Both the parties are directed to appear before the trial Court on 10.02.2025. Pending application(s), if any, stand(s) disposed of. Gourav/120 (NARENDRA SINGH DHADDHA),J