Bhulla Ram vs Shankar Dass

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India read with Section 151 of CPC for quashing orders dated 16.05.2009, Annexure P3, 20.05.2010, Annexure P5 and 30.07.2010, Annexure P6 passed by learned Additional Civil Judge (Senior Division), Dasuya and for granting one effective opportunity to Petitioner-Defendant to complete his entire evidence i.e. cross-examination of D.W.2 and for proving the compromise mentioned in the written statement of Petitioner-Defendant.

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

Facts relevant for the decision of the present revision petition are that, a suit was filed by Respondent-Plaintiff for possession by way of partition by metes and bounds to the extent of his share in the property in dispute against his brother i.e. father of present Petitioner. Suit was contested by father of present Petitioner on the ground that there was some compromise between them effected due to intervention of the police. Issues were framed. Evidence of Plaintiff was closed. Part evidence of Petitioner-Defendant was recorded when Defendant expired and the present Petitioner was imp leaded as LR of his deceased father.

It has been contended by learned Counsel for the Petitioner that evidence could not be concluded by Petitioner-Defendant as his father was seriously ill and thereafter he expired and that though he availed two opportunities after death of his father and however, evidence could not be concluded. It is further contended by learned Counsel for the Petitioner that statement of D.W.2 Naresh Kumar has already been recorded and however, he is only remains to be cross-examined by counsel for Plaintiff. He has further contended that he has also filed application u/s 65 of the Indian Evidence Act for producing secondary evidence of alleged compromise entered between the parties and however, the said application has not been decided on merit by learned trial Court and rather the same has also been dismissed on the ground that same was filed at a belated stage.

On the other hand, it has been contended by learned Counsel for the Respondent that already sufficient opportunities were availed by Petitioner-Defendant to adduce evidence and that application u/s 65 of the Indian Evidence Act was filed at much belated stage only to delay the suit which is pending since the year 2004.

I have considered all the facts and circumstances of the case.

Though father of present Petitioner was negligent in not adducing evidence at the appropriate stage and not filing the application u/s 65 of the Indian Evidence Act at the appropriate stage and however, in view of the fact that father of Petitioner was seriously ill and later on he died and the case was fixed for evidence of Petitioner-Defendant and present Petitioner was brought on record as LR of his deceased father, one opportunity can be granted to Petitioner-Plaintiff to produce D.W.2 Naresh Kumar for the purpose of cross-examination by Counsel for the Plaintiff and learned trial Court can also be directed to decided application of Petitioner filed u/s 65 of the Evidence Act on merit and the other party can be compensated by way of cost.

Hence, in view of aforementioned facts, the present revision petition is accepted. Impugned order is set aside.

Learned trial Court is directed to grant one effective opportunity to Petitioner to produce D.W.2 Naresh Kumar for the purpose of cross-examination by Counsel for the Plaintiff. Learned trial Court is further directed to decide application filed by Petitioner-Plaintiff u/s 65 of the Evidence Act for leading secondary evidence, on merit after hearing both the parties.

However, Petitioner is burdened with cost of 10,000/-, which shall be a condition precedent.

Learned trial Court is also directed to decide the said application expeditiously and efforts be made to decide the same within one month from the date of receipt of certified copy of this order.

Disposed of accordingly.