Jagdish Arora and Others vs Jagdeep Singh

L.N. Mittal, J.

CM No. 16868-CII of 2013

Allowed as prayed for. Main Case

Defendants have approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India, being aggrieved by order dated 01.08.2013 Annexure P-1 passed by the trial Court there by closing evidence of defendants by Court order.

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

Counsel for the petitioners prayed that only one more opportunity may be granted to defendant no.1 for appearing in the witness box for his cross examination because he has already tendered his affidavit of examination-in-chief.

I have carefully considered the aforesaid prayer but the same cannot be accepted in the facts and circumstances of the instant case. Perusal of zimni orders of the trial Court, reproduced in the revision petition along with impugned order Annexure P-1, reveals that the defendants had been granted as many as 16 effective opportunities for their evidence but they have failed to conclude their evidence. According to proviso 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, said provision being rule of procedure is directory and not mandatory and may be followed with some flexibility and not with extreme rigidity. However, at the same time, the said Rule cannot be made redundant and futile by granting any number of unlimited and infinite opportunities to a party for its evidence. Delay in disposal of cases is attracting widespread criticism and rightly so. To curtail the said delay, the aforesaid provision was inserted by amendment. It is thus a salutary provision. In the instant case, instead of three opportunities stipulated in the aforesaid provision, the defendants have been granted sixteen opportunities for their evidence. Consequently, no more opportunity can be granted to them for their evidence.

In the aforesaid context, it is significant to notice that defendant no.1 tendered his affidavit of examination-in-chief on 16.08.2012 and thereafter did not appear for his cross-examination on eleven dates of hearing (till prior to passing of impugned order). Consequently, defendants are to blame themselves for the situation in which they find themselves.

There is another significant aspect of the matter. Defendant no.1 was present in the Court on 01.08.2013, the date on which the impugned order was passed. The trial Court asked defendant no.1 to enter the witness box for his cross-examination but he flatly refused because his counsel had gone to Mohali and was not available at Derabassi. The case was taken up by the trial court at 11.30pm, 12.15pm, 2.30pm and 3.30 pm. The counsel was waited till 3.40pm when the impugned order was passed but the counsel did not turn up and in the absence of the counsel, defendant no.1 in spite of being implored by the trial court, refused to take the witness stand. In view of the aforesaid, I find that evidence of the defendants has been rightly closed by the trial Court. The trial Court, in fact, has granted over indulgence to the defendants by granting them as many as sixteen opportunities for their evidence. No further indulgence is required to be granted by this court by giving any more opportunity to the defendants for their evidence. There is no infirmity, much less perversity, illegality or jurisdictional error in the impugned order of the trial Court so as to call for interference by this court in exercise of power of superintendence under Article 227 of Constitution of India. The revision petition is completely meritless and is accordingly dismissed in limine.