Bhag Singh and Another vs Nachattar Singh and Others

G.C. Garg, J.—This revision is directed against the order dated November 27, 1989 passed by the trial court whereby evidence of the defendants has been closed by order.

Respondents 1 and 2 herein filed a suit for declaration against Bhag Singh, Santa Singh, Petitioners and four others challenging a decree passed in favour of the defendants. On November 27, 1989, when the suit was fixed for evidence of the defendants, the trial Court closed their evidence by order after noticing that the defendants were granted last opportunity to produce their evidence and they were directed to produce evidence at their own risk and responsibility. The trial court further noticed that the defendants failed to get the service of case on the witnesses. Since no witness was produced on November 27, 1989 nor was any witness served, the trial court finding no justification for adjourning the case for defendants'' evidence, closed their evidence.

Learned counsel for the petitioners while re-iterating the submissions as made before the trial court, submitted that in the present suit the plaintiffs have challenged a consent decree passed in favour of the defendants which relates to land measuring 114 kanals and 2 Marlas and therefore, in order to effectively defend the suit, the defendants may be afforded only one opportunity for concluding their evidence, in the interest of justice.

I have heard the learned counsel for the parties and perused the record.

True that the suit was about two and a half years old when the evidence of the defendants was closed but it is evident from the impugned order that summonses of defendants'' witnesses were issued for November 27, 1989 and the same were received back unserved. Once it was so, the trial court should have granted at least one more opportunity for service of notices on the witnesses. Thus, on a consideration of the entire matter and in the facts and circumstances of this case, I am inclined to grant one opportunity to the defendant to conclude their evidence. In the circumstances, the revision is allowed and the impugned order is set aside. The parties through their counsel are directed to appear in the trial court on January 16, 1996, on which date the trial court shall fix a date for evidence of the defendants in the month of March, 1996. It is, however, made clear that the trial court shall afford only one effective opportunity for evidence of the defendants. The defendants may, if so desire can have the assistance of the Court as contemplated by Order 16 Rule 7-A of the CPC but the non-service or non-appearance of the witnesses shall not be a ground to seek another date for their evidence. If, however, the witnesses are summoned through Court and they fail to appear in Court despite service, the trial court shall adopt coercive steps for then appearance and in that eventuality only, the trial court may further adjourn the case for evidence of the defendants. Since the suit pertains to the year 1987, the trial court is directed to dispose of the suit as expeditiously as possible but not later than August 31, 1996. There will be no order as costs.