IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.4258     OF 2010 (Arising out of SLP (C) No.7901 of 2006)  

Amrit Lal Kapoor & Anr.     …Appellants

                           Versus

Kusum Lata Kapoor & Ors.                           …Respondents

O R D E R

T.S. THAKUR, J.

1. Leave granted.

2. This appeal calls in question an order dated 29th March  

2006  passed  by  the  High  Court  of  Himachal  Pradesh  at  

Shimla whereby an order passed by the trial court closing  

the evidence of the defendants-appellants herein has been

affirmed  and  C.M.P.M.O.No.54  of  2006  filed  against  the  

same dismissed.

3.    In a suit for declaration of title and consequential relief  

in  the  nature  of  permanent  prohibitory  injunction,  the  

defendants-appellants  herein  have  set  up  a  Will  allegedly  

executed  in  their  favour  by  late  Shri  Devraj  Kapoor,  

deceased husband of  plaintiff-respondent  No.1.   After  the  

plaintiff  had led her evidence in the suit,  the defendants-

appellants  herein were called upon to adduce evidence in  

support  of  their  case.  While  the  defendants  had  yet  to  

conclude their evidence, the parties reported to the Court  

that  they  were  exploring  the  possibility  of  an  amicable  

settlement amongst themselves.  The compromise talks did  

not however fructify in any settlement with the result that  

on 16th December 2005, the parties reported failure of the  

attempt  made  in  that  direction  whereupon  the  Court  

directed  the  defendants-appellants  to  produce  all  their  

witnesses  except  DW  1,  Durga  Singh  on  their  own  

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responsibility.   The  Court  further  directed  that  if  the  

defendants failed to produce the evidence as directed the  

same shall be deemed to have been closed.

4.   One of the witnesses which the defendants-appellants  

had cited, was Shri Ashwani Kumar Kapoor working in the  

Engineering Department in the State of Himachal Pradesh.  

Shri  Ashwani  Kumar  Kapoor  happened to  be an attesting  

witness  to  the  will  propounded  by  the  defendants.   The  

appellants’ case is that Shri Ashwani Kumar Kapoor made a  

written request to his superior for grant of casual leave and  

also  for  permission to leave the station  to enable  him to  

appear  in  the  Court.  In  response to the said  request  the  

Executive Engineer concerned by an endorsement dated 18th  

February 2006 declined  the permission prayed for  on the  

ground  that  H.P.  State  Assembly  was  in  session.  The  

appellants’ case is that since the witness was a Government  

official and since his immediate officer had declined casual  

leave and leave to go out of station, the witness could not  

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be  present  for  getting  his  deposition  recorded  on  21st  

February 2006 when the trial Court closed the evidence of  

the defendants-appellants.  

5. Aggrieved by the said order, the appellants preferred  

C.M.P.M.O. No.54 of 2006 before the High Court of Himachal  

Pradesh  at  Shimla  which  was  summarily  rejected  by  the  

High  Court  without  so  much  as  recording  any  reason  in  

support of the said order.  The present appeal assails the  

correctness of the said order as already noticed above.

6. Appearing for the appellants, Mr. Agrawala strenuously  

contended that closure of the evidence by the trial Court and  

the dismissal of the appellants’ challenge to the said order  

by the High Court is wholly unjustified causing grave failure  

of  justice  and  requiring  interference  by  this  Court  under  

Article  136  of  the  Constitution.   He  argued that  the  trial  

Court and so also the High Court had failed to appreciate the  

circumstances  in  which  Shri  Ashwani  Kumar  Kapoor  was  

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prevented from appearing as an attesting witness to the will.  

He drew our attention to the order passed by the Engineer-

in-Chief, PWD, Shimla directing all Superintendent Engineers  

to ensure that nobody leaves the Headquarter till  the 10th  

session  of  the  H.P.  State  Vidhan  Sabha  between  21st  

February 2006 to 7th April 2006 is over and to make special  

arrangements for sending replies pertaining to Vidhan Sabha  

Business to avoid delay.  It was according to Mr. Agrawala,  

pursuant to the said instructions that the Executive Engineer  

had declined the leave applied for by Shri Ashwani Kumar  

Kapoor which had resulted in his non- appearance before the  

Court  below.  In  as  much  as  the  Court  had  failed  to  

appreciate  the  circumstances  in  the  background  whereof  

Shri Ashwani Kumar Kapoor had not been produced and it  

has committed a mistake causing failure of justice especially  

when Shri  Ashwani  Kumar  Kapoor  was  the  only  attesting  

witness to the will propounded by the defendants.

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7.  There is considerable merit in the submission made by  

Mr. Agrawala.  Shri  Ashwani  Kumar Kapoor is  an attesting  

witness to the Will which the defendants-appellants herein  

have set up in their defence. Non-examination of the said  

witness  would,  therefore,  seriously  affect  their  case.  We  

cannot lose sight of the fact that the witness could not be  

produced not because of any deliberate neglect or inaction  

on the part of the appellants herein but on account of the  

refusal of casual and station leave prayed for by him.  In the  

circumstances,  interest  of  justice  would  be  substantially  

served if  a  final  opportunity  is  given to the appellants  to  

produce the witness.   

8. In the result this appeal is allowed, the order passed by  

the High Court and that passed by the trial Court are set  

aside and the matter remitted back to the trial court with  

the  direction  that  the  appellants  shall  be  permitted  to  

produce Shri Ashwani Kumar Kapoor as a witness in support  

of their case by issuing summons directly to the witness as  

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also through his immediate officer. Service of the summons  

shall  be  the  responsibility  of  the  appellants.  We  further  

direct  that  since  the  order  closing  the  evidence  of  the  

appellants has been set aside by us, the appellants shall be  

free to examine any other witness in support of their case  

who is cited in the list already filed by them but who has not  

been produced so far. The production of any such witnesses  

shall, however, be the responsibility of the appellants.  The  

parties to bear their own costs.

                                                                         ……………………………J.

                 (AFTAB ALAM)

……………………………J. (T.S. THAKUR)

New Delhi May 6, 2010

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