Balbir Singh and Others vs Bhim Singh and Another

L. N. Mittal, J.—Plaintiffs have invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge order dated 26.08.2010 Annexure P-1 passed by learned Additional Civil Judge (Senior Division), Dera Bassi thereby closing evidence of the Plaintiffs by Court order.

Learned Counsel for the Petitioners prays that only one more opportunity may be granted to the Petitioners to lead their remaining evidence at own responsibility, subject to payment of costs.

I have carefully considered the aforesaid prayer. Perusal of the zimini orders of the trial Court as reproduced in the revision petition reveals that examination-in-chief of three witnesses was recorded on 22.01.2009 and cross-examination was deferred to 26.03.2009. On 26.03.2009, examination-in-chief of another witness (PW-4) was also recorded. Cross-examination was deferred on the request of counsel for Defendants. On the next date of hearing i.e on 21.07.2009, no witness of the Plaintiffs was present. The case was adjourned to 15.10.2009. On that date, two witnesses of the Plaintiffs were present, but their cross-examination could not be recorded as proxy counsel for C.R. No. 8031 of 2010 -2 Defendants prayed for adjournment. Case was adjourned to 26.02.2010. On that date, one witness was present and his cross-examination was recorded. No other witness was present. Case was adjourned to 26.08.2010, on which date, no witness of the Plaintiffs was present and, therefore, evidence of the Plaintiffs was closed by Court order.

Aforesaid zimini orders reveal that on 3 dates of hearing, witnesses of the Plaintiffs were present, but cross-examination was deferred on the request of counsel for Defendants. However, witnesses of the Plaintiffs were not present on the other three dates of hearing. In these circumstances, I am of the considered opinion that ends of justice would be met if another opportunity is granted to the Petitioners for their remaining evidence at own responsibility on payment of costs.

I intend to dispose of the instant revision petition without issuing notice to Respondents so as to avoid further delay in the disposal of the suit and also to save the Respondents from the expenses which they may have to incur in engaging counsel for the revision petition if notice of revision petition is issued to them.

In view of the aforesaid discussion, the instant revision petition is allowed and the trial Court is directed to grant only one more opportunity to the Petitioners/Plaintiffs to lead their remaining evidence at own responsibility, subject to payment of Rs. 2000/-as costs precedent. The Petitioners may take assistance of the Court to summon evidence, but not more than one opportunity shall be granted to the Petitioners even on the ground of non-service of any witness or non-appearance of any witness despite service or on any other ground whatsoever.