Archana Estate and Construction Private Limited vs Roshan Lal

G.S. Singhvi, J.—Heard the learned counsel for the parties.

This order will dispose of three revisions-Civil Revision No. 3766 of 1994; Civil Revision No. 3767 of 1994 and Civil Revision No. 3768 of 1994 filed by the petitioner against the three separate orders passed by the Subordinate Judge 1st Class, Gurgaon, in different civil suits pending between the parties.

The learned trial Court has closed the evidence of the defendant-petitioner by observing that the petitioner has failed to take steps for producing his evidence despite sufficient opportunities have been given to it.

Shri Hemant Kumar, Advocate has argued, and in my opinion his argument merit acceptance, that the defendant-petitioner has not to be blamed in taking steps for examining two official witnesses. On its part the petitioner did take steps for service of summons of Naib Tehsildar and Clerk of the Income Tax Department. It appears that the learned Trial Court has taken extremely hyper technical view of the provisions regarding summoning of the witnesses. Mere fact that the petitioner bad not indicated in the summons that the summons be served on the Clerk of the Income Tax Department through his Head of the Department, cannot be a ground for drawing a conclusion that the petitioner has been guilty of negligence. So far as Naib Tehsildar is concerned it was reported that he was not available in his office. For this the petitioner can hardly be blamed.

Learned counsel for the plaintiff-petitioner pointed out that taking advantage of the delay in the disposal of the suit filed by his client, the petitioner is taking active steps for finalisation of partition proceedings, and therefore, the petitioner should be prevented from taking active steps in the partition proceedings.

In my opinion, the impugned orders passed by the learned trial Court suffer from material irregularity in the exercise of its jurisdiction, and has occasioned substantial failure of justice. Apparently, the learned trial Court has ignored one of the settled principles of law that technical rules of procedure should be applied to serve the ends of justice and should not be made tools of oppression.

In the result these Revision petitions are allowed, orders passed by the learned Subordinate Judge Ist Class, Gurgaon, are, hereby, set aside. Now the defendant-petitioner shall file process fee with summons of Jaib Tehsildar as well as Clerk of the Income Tax department. For the Clerk, Income Tax department summons should be sent through the Commissioner of Income Tax. The defendant-petitioners should also take steps for getting these summons served on the two officials before the next date. In case the two official witnesses fail to appear, it shall be the duty of the trial Court to take effective measures under the CPC for securing their attendence. This entire exercise must be completed by the trial Court within a period of two months. In the meanwhile it shall be the duty of the defendant petitioner not to take effective steps in the partition proceedings.