IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 1^st DAY OF DECEMBER, 2021 BEFORE HON’BLE MR. JUSTICE AJAY MOHAN GOEL CIVIL REVISION No. 53 of 2021 Between:

SH. BHUPINDER SINGH THAKUR ALIA KAKU, S/O LATE SH. HET RAM THAKUR, R/O THAKUR NIWAS, NEAR INDIAN AGRICULTURE RESEARCH INSTITUTE TUTIKANDI, SHIMLA, HP.

….PETITIONER.

(BY MS. BHAVNA DUTT A, ADVOCATE)

AND SH. SUSHANT THAKUR, S/O SH. OM PRAKASH, R/O SUSHANT BHAWAN NEAR TUNNEL SANJAULI, SHIMLA-6, H.P.

….RESPONDENT.

(MR. RAKESH MANTA, ADVOCATE, FOR THE RESPONDENT )

Whether approved for reporting?

H This petition coming on for orders this day, the Court passed the following:

O R D E R

By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioner has challenged order dated 02.09.2021, passed by the Court of learned Civil Judge, Court No.7, Shimla, in a miscellaneous application filed by the present petitioner under Order 16 Rule 1 read with Section 151 of the Code of Civil Procedure in Civil Suit No. 8/2010 of 16/2013, (RBT- 119-1 of 17/13) titled as Sushant Thakur vs. Bhupinder Singh, vide which, the said application stands rejected by the learned Trial Court.

2. The contentions of the learned counsel for the petitioner is that the order passed by the leaHrned Court below is not sustainable in the eyes of law as learned Court has erred in not appreciating that certain witnesses wfho stood duly served and did not thereafter appear before the Court for the purpose of deposition, were not summoned by the Court by resorting to the provision of Order 16 Rule 12 of the Code of Civil Procedure, which has resulted in great prejudice to the petitioner. Accordingly, a prayer has been made for setting aside the impugned order and for issuing Ca direction to the learned Trial Court to summon the witnesses on behalf of the defendant in terms of the prayer made in the application.

g3. The petition is resisted by the respondent inter-alia on ithe ground that there is no infirmity in the order passed by the learned Trial Court as the filing of the application was nothing but abuse of the process of law. According to the learned counsel for the respondent, after the plaintiff closed his evidence as far back in the month of May, 2018, despite more than reasonable opportunities having been granted to the defendant, he failed to lead his evidence and the filing of the application was just a tactic to delay the adjudication of the suit. He has argued that learned Trial Court was very indulgent and lenient towards the defendant as far as exceeding to his requests of again and again seeking time to lead evidence is concerned, yet defendant failed to lead the evidence and the dismissal of the application in this background of the application filed under Order 16 Rule 1 of the Code of Civil Procedure by the learned Trial Court calls for Hno interference.

4. I have heard learned counsel for the parties and have also gone through the impugned order fas well as the documents appended with the petition.

5. At the very threshold, this Court would like to make an observation that in exercise of powers conferred upon it under Section 151 of the Code of Civil Procedure, this Court interference with the orders passed by the learned Court below, in case a Court either exCercised powers not vested in it or it fails to exercise powers vested in it or it exercised powers so vested in it with material irregularity. Here the allegation is not that the order has gbeen passed by the learned Trial Court either by exercising the ipowers not conferred upon it or by not exercising the powers conferred upon it. Thus, the impugned order has to be seen on the touch stone of as to whether the learned Court below has exercised the powers vested in it with material irregularity or not.

6. Record demonstrates that after the evidence of the plaintiff was closed, the case was ordered to be listed on 06.07.2018, for recording the statements of defendant witnesses. On the said date no witness on behalf of the de