Gurvinder Singh vs Swaran Singh And Another

Alka Sarin, J

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 28.09.2018 as well as order

dated 22.10.2018 passed by the Trial Court whereby the evidence of the defendant-petitioner has been closed by order.

The brief facts relevant to the present case are that after the issuance of notice in the suit, the defendant-petitioner filed his written statement and

thereafter issues were framed on 12.08.2013. On 11.05.2015, the suit of the plaintiff-respondent was dismissed in default under Order 9, Rule 8 of the

Code of Civil Procedure, 1908 (hereinafter to be referred to as “CPCâ€). However, the said suit was restored vide order dated 20.04.2018.

Thereafter, the plaintiff-respondent led his evidence and the matter was adjourned. The case was fixed for evidence of the defendant-petitioner on

13.08.2018, the defendant-petitioner is stated to have availed four effective opportunities to lead his evidence but failed to lead any evidence. On

24.09.2018, he was permitted to lead his evidence subject to payment of `500/- as costs and the matter was adjourned to 28.09.2018. It is stated that

on 28.09.2018, the costs were paid as directed by the Court, however, the defendant-petitioner could not lead his evidence and the following order was

passed: -

“Cost of Rs.500/- paid in DLSA vide receipt no.300422. Today the case was fixed fo r defendant evidence. No DW present. Perusal of the file

shows that the defendants have availed numerous effective opportunities for adducing their evidence and whereas from the last date of hearing last

opportunity was granted to the defendants. It is to be seen that despite the same the defendants have failed to conclude their evidence. Accordingly,

defendants evidence is closed vide Court order. However, in the interest of justice, it is made clear that in case any defendants evidence is present on

the next date of hearing, it shall be examined prior to any rebuttal evidence. Case is adjourned to 15.10.2018 for rebuttal evidence if any and for

arguments.â€​

Thereafter, on 15.10.2018, the following order was passed: -

“Today the case was fixed for rebuttal evidence with the condition that if any documentary evidence of the defendant is present, he would be

examined firstly prior to commencement of rebuttal evidence. DW 1 Sandeep Singh and DW 2 Harjit Singh are present and tendered affidavit in thier

(sic) e xamination in chief. Their cross is deferred on the request of counsel for plaintiff on ground that copy of affidavit have been supplied today.

Heard and allowed. No other DW present. DW 1 Sandeep Singh and DW 2 Harjit Singh are bound down for next date of hearing. Now to come up

on 22.10.2018 for cross-examination of DW 1 Sandeep Singh and DW 2 Harjit Singh.â€​

Thereafter, on 22.10.2018, the following order was passed: -

“Today the case was fixed for rebuttal evidence with the condition that if any evidence of the defendant is present, he would be examined firstly

prior to commencement of rebuttal evidence. No defendant evidence adduced today. Counsel for the defendant requested for an adjournment. Heard.

I deem not fit to grant further opportunity to the defendant to adduced its evidence. Accordingly, documentary evidence of the defendant is closed by

Court order. Now to come up on 05.11.2018 for rebuttal evidence, if any and for arguments.â€​

It is the case set up by the defendant-petitioner that after the passing of the order dated 15.10.2018, the defendant-petitioner had already tendered his

evidence by way of affidavit of DW1-Sandeep Singh as well as that of DW2-Harjit Singh and their cross-examination was deferred on the request of

plaintiff-respondent and the case was adjourned to 22.10.2018. It is further stated that on 22.10.2018, defendant-petitioner was present in Court along

with his evidence in the shape of affidavit. However, the said affidavit was not taken on the record by the trial Court and vide the impugned order

dated 22.10.2018, the evidence of the defendant-petitioner was closed.

I have heard the learned counsel for the parties.

It has been contended by the learned counsel for the defendant-petitioner that in due deference to the order dated 15.10.2018, the defendant-petitioner

had already tendered evidence in the shape of affidavit of DW1-Sandeep Singh and DW2-Harjit Singh and his own affidavit was also ready to be

tendered on 22.10.2018 when the evidence of the defendant-petitioner was closed by order. It has further been prayed that one last opportunity be

granted to the defendant-petitioner to conclude his evidence. Learned counsel for the petitioner further states that the matter is now fixed for

04.03.2020 and that on the said date he would conclude his evidence.

Per contra, the learned counsel for the plaintiff-respondent states that no case is made out for the grant of any further opportunities. The defendant-

petitioner has already availed numerous opportunities and despite t he same he has not concluded his evidence. It is further contended that these are

only delaying tactics which are being adopted by the defendant-petitioner.

The defendant-petitioner had partly submitted his evidence on 15.10.2018 in the shape of affidavits of DW1-Sandeep Singh and DW2-Harjit Singh and

cross-examination was deferred on the request of plaintiff-respondent. Thus, it cannot be said that this is a case where the defendant-petitioner, in an

effort to delay the proceedings, was not concluding his evidence.

In view of the above, in order to do complete justice between the parties, I deem it appropriate to grant one last opportunity to the defendant-petitioner

to conclude his evidence on the date already fixed, i.e., 04.03.2020. The said opportunity is being granted subject to payment of `25,000/- as costs to

the plaintiff-respondent. It is made clear that in case the evidence is not concluded by the defendant-petitioner on 04.03.2020, the present revision

petition would be deemed to have been dismissed.

With the above observations, the present revision petition is disposed of.