Daljit Singh vs Mehar Singh and Others

Rajesh Bindal, J.—Prayer in the present petition filed under Article 227 of the Constitution of India is for setting aside order dated 9.3.2009 passed by the learned court below, whereby evidence of the petitioner was closed by order of the court.

For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondents, as the same would unnecessarily delay not only the disposal of the present petition but also the civil suit as well.

The proceedings in the present case arise out of a suit for specific performance of the contract filed by petitioner/plaintiff against the petitioners/defendants.

Learned Counsel for the petitioners submitted that on 5.6.2006 the petitioner filed affidavit and the case was adjourned to 1.12.2006 for his cross-examination. Thereafter on 1.12.2006 and 25.4.2007 the case was fixed for cross-examination of the petitioner but the same was not conducted by the defendants as they were proceeded ex-parte. On 15.2.2008 ex-parte proceedings against defendants Nos. 1, 2 and 4 were set aside. After that the case was adjourned to 7.5.2008 for petitioner''s evidence. On 9.3.2009, when the impugned order was passed, the petitioner examined one witness but the other witness refused to appear as he has not received the summons from the court. He further submitted that in case one opportunity is granted, the petitioner will complete his entire evidence on the date already fixed.

The facts submitted by the learned Counsel for the petitioner are borne out from the record. It is not a case where the petitioner was delaying the matter by seeking adjournments and not leading evidence rather it is the defendants who had not cross-examined him and were proceeded ex-parte. As the ex-parte orders were later on set aside and evidence of the petitioner started on 7.5.2008, the petitioner examined two witnesses in his evidence but one witness refused to appear in the court as he was not served for that date, which cannot be said as a fault of the petitioner. The case is stated to be fixed before the learned court below on 16.4.2009 for evidence of the defendants.

Accordingly, while setting aside the impugned order dated 9.3.2009, closing the evidence of the petitioner, the learned court below is directed to grant one opportunity to the petitioner for completing his evidence on the date already fixed by the court before the evidence of the defendants is recorded. The same shall be subject to payment of Rs. 2,000/ - as costs to the respondents. The petitioner is at liberty to get the dasti summons issued for the witnesses. It is, however, made clear that no further opportunity shall be granted to the petitioner in case he fails to complete his entire evidence on the date fixed.

The revision petition is disposed of in the manner indicated above.