Anil Kumar Gupta And Ors vs Sushila Devi And Ors

This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 21.01.2017 passed in Title Suit No. 43 of 2013 by Sub Judge IV, Giridih is under challenge by which petition dated 17.06.2016 filed by the petitioner/defendant to the suit for recall of the order dated 03.06.2016 has been rejected.

It is the case of the petitioner that after framing of the issues, the plaintiffs have examined their witnesses, which was closed on 02.01.2016 and thereafter the case was fixed for adducing evidence on behalf of defendant and when on two dates witnesses have not been produced, the evidence of the defendants has been closed, which has been prayed to be recalled by the petitioners/defendants by filing petition dated 17. 06.2016, but the same has been rejected against which the present writ petition has been filed.

Mr. Prabhash Kumar, learned counsel for the petitioner has submitted that the suit pertains to declaration of right and title and if the petitioners are not allowed to lead evidence, they would suffer irreparable loss and, therefore, the impugned order may be set aside and the trial Court may be directed to allow the defendants to lead their evidence, which would be completed on day-to-basis in one month.

Mr. Prakash Chandra, learned counsel for the respondents-plaintiffs has objected to such submission and has submitted by referring to the impugned order that ample opportunity has been given to the defendants to lead evidence but they evaded for the one pretext and for the other. Since suit is of the year 2013, the trial Court has passed just and appropriate order, which may not be interfered with.

Having heard learned counsel for the parties and on appreciating the rival submissions of the parties, it is evident that the suit is declaratory in nature.

The issues have been framed on 12.08.2014 and thereafter case was running for plaintiffs' evidence, which was closed on 02.01.2016 and the case was fixed for filing of the list of witnesses by the defendants by fixing the date on 29. 04.2016 as a last and final opportunity and again in the interest of justice, the case was fixed on 19.05.2016 with a direction to file list of witnesses, but when such list of witnesses has not been filed, the defendants' evidence was closed vide order dated 03.06.2016, but, the petitioner has filed petition for recall of the order 3.06.2016, which was rejected, hence the present writ petition has been filed.

This Court, after going across the finding recorded in the impugned order, is of the view that the suit is of the year 2013 and as such the same is to be decided at an early date but taking into consideration the conduct of the defendants has passed the impugned order closing the evidence of the defendants, hence no illegality will be said to have been committed by the trial Court.

But the question as has been raised by learned counsel for the petitioner that since the suit is declaratory in nature and if the the petitioner would be denied to lead evidence the petitioner will suffer irreparable loss, which cannot be compensated and, therefore, this Court is of the view that the petitioner is to be given an opportunity to lead evidence within a specified period of time.

In view thereof, the impugned order 21.01.2017 is modified with a direction to provide opportunity to the defendants to lead their witnesses on day-to-day basis, and conclude the trial within a period of of one month, but subject to cost of Rs. 5000/- to be paid to the plaintiffs before commencement of examination of defendants' witness.

With the aforesaid observations and directions, the writ petition stands disposed of.