Dayal Singh vs Tulsa Singh

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India, orders dated 14.05.2012 (Annexure P-3) and 08.08.2012 (Annexure P-5) passed by learned Additional Civil Judge (Senior Division), Patiala are under challenge at the hands of defendant Dayal Singh. Respondent-plaintiff has filed suit against defendant-petitioner for recovery of damages for malicious prosecution. Vide order dated 14.05.2012 (Annexure P-3), trial court closed the evidence of the defendant-petitioner by court order. Application Annexure P-4 moved by the defendant for recall of order Annexure P-3 has been dismissed by the trial court vide order Annexure P-5.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner prayed that only one more opportunity may be granted to the petitioner for his remaining evidence at own responsibility.

I have carefully considered the aforesaid prayer. As per averments made in the revision petition, defendant-petitioner was granted four opportunities in all for his evidence. According to Order 17 Rule 1 of the Code of Civil Procedure, only three opportunities are required to be given to a party for its evidence. However, the said provision being rule of procedure may be followed with some flexibility and not with extreme rigidity.

Keeping in view all the circumstances of the case, including short dates given for evidence of the defendant-petitioner, I am of the considered opinion that ends of justice would be met if another opportunity is granted to the defendant-petitioner for his remaining evidence at own responsibility, on payment of costs.

I intend to dispose of the instant revision petition without issuing notice to plaintiff-respondent so as to avoid further delay in disposal of the suit and also to save the respondent-plaintiff of the expenses he may have to bear in engaging counsel for the revision petition, if notice of the same is issued to him.

Accordingly, the instant revision petition is allowed. Trial court is directed to grant only one more opportunity to the defendant-petitioner for his remaining evidence at own responsibility, subject to payment of Rs.7,500/- as costs precedent. The petitioner may take assistance of the Court to summon witnesses, but not more than one effective opportunity shall be granted to the petitioner for his remaining evidence at own responsibility on any ground whatsoever including non-service of any witness or non-appearance of any witness in spite of service.