Pritam Kaur vs Sukhraj Kaur and Others

Rajiv Narain Raina, J.—The challenge in this petition is to the order dated 26th March, 2014 passed by the Civil Judge (Senior Division), Gurdaspur, whereby the evidence of the defendant, the petitioner herein, has been closed by order on the ground that it was the second effective opportunity granted for leading defendant''s evidence and both were not availed.

On 26th March, 2014, a prayer was made that defence witness Lakha Singh is unable to attend Court to depose for reason of threat of harm from certain persons. This was the pleaded case in the application seeking adjournment. The case pleaded therein was not that the witness was ill and, therefore, is unable to attend court proceedings. It appears rather strange that the trial Judge without due application of mind and without reading the application has clubbed threat with illness theory to conclude on denial of request for a further date for cross examination of Lakha Singh as the best possible order to make in the circumstances. In the application there is not even a whisper of illness of the witness justifying absence. The request for adjournment has been found by the learned trial judge to be a lame excuse to get another date.

It is not necessary to traverse the facts of the case since they have been extensively incorporated in the order dated 8th January, 2014 passed by this Court in CR No. 4912 of 2013, filed by the petitioner against the earlier order dated 22nd July, 2013 closing the evidence of the defendant. This Court in the order has recorded as follows:-

It was strange that the trial Court has closed the evidence of the defendants by virtue of impugned order dated 22.07.2013 (Annexure P-3), without affording adequate opportunities to them, to conclude their evidence.

It has been recorded by this Court in the aforesaid order issued in the earlier litigation that the defendant''s turn for leading its evidence arose for the first time on 29th May, 2013 when the plaintiffs closed their evidence. It has also been recorded that the defendant had deposited process fee and diet money for examining the official witnesses mentioned in para no. 7 of the petition. It was also affirmed that the trial Court ought to have granted adequate opportunities to the defendant to conclude its evidence. The production of such evidence was essential to decide the real controversy between the parties which is a legal requirement of a fair trail. It was ultimately directed that the trial Court would provide two more effective opportunities to the defendant to conclude evidence subject to costs imposed.

This suit was filed in 2006. The Plaintiffs took seven years to conclude their evidence in 2013. When this Court directed two effective opportunities to be given to the defendant in the order dated 8th January, 2014 it was with a view to do substantial justice to the complaining party.

Learned counsel for the petitioner submits that in the two adjournments sought after 29th May, 2013, the evidence of DW2 and DW3 was completed, after which, the evidence was closed, which order was undone by this Court on 6th January, 2014. The effective opportunities would obviously run thereafter. The cross examination of only one witness i.e. DW4 Lakha Singh remained which if not recorded, would leave the examination-in-chief in a limbo resulting in prejudice to the petitioner and to her defence of the property suit brought against her.

As I read the order, I find the reason of rejection of the request is clearly erroneous and a misreading of the application in which a request was made for further time to produce DW4 on ground of perceived threat keeping the witness shy from attending court proceedings which reason could not be lightly dubbed as a lame excuse. Introduction of a foreign matter in a judicial order makes it susceptible to intercession by this court. When this court granted two effective opportunities to the defendant, it was meant to do substantial justice to an afflicted party. If the presence of a witness summoned by deposit of process fee and diet money etc. is to be secured the responsibility then also falls on the Court to execute its command summoning witness and order the presence of the witness to be secured even if it requires summoning through bailable warrants and if need be by affording police protection in case the threat perception or apprehension of non-appearance is found genuine, bonafide and reasonable.

In the circumstances, to secure the ends of justice it would require that the impugned order dated 26th March, 2014 should not be allowed to stand as the defendant deserves reasonable and adequate opportunity for the recording of the remaining testimony of DW4 Lakha Singh. For this, I do not think any notice is required to issue to the respondents only to hear them on the signals emanating from the revising order passed by this Court on 8th January, 2014. That hope and trust has been belied by the Civil Judge (Senior Division), Gurdaspur proceeding in a bit of a hurry, clubbing two disparate elements together, one real the other imaginary occasioned by failure to read the application for adjournment. If this course is adopted the plaintiffs can well be compensated for the delay caused in their suit and it would save time of this court as well. In any case no prejudice will be caused to the plaintiffs. Accordingly, notice to respondents is dispensed with but the petitioner is mulcted with costs of Rs. 10,000/- to be paid to the plaintiff on the next date of hearing since that was the price paid by the defendant in the earlier petition.

The petition is accepted. The impugned order is set aside. The trial Court would now endeavour to conclude the evidence of the defendants by production of DW4 Lakha Singh for his cross-examination on a date fixed in its judicial discretion as the case may demand.

Counsel then informs that the next date before the trial Court is 29th April, 2014. On that date, let the cross-examination of Lakha Singh be recorded. In case and for any genuine or bonafide reason, or a reason beyond control, the said witness is not present then one further opportunity be given but within a time span of a fortnight thereafter, before closing the defendant''s evidence by order.