Raghuvir Singh vs Govind Ram and Others

Mohd. Yamin, J.—This is a revision against the order of learned Additional Civil Judge (JD) No.3, Bikaner dated 21.5.1999 by which he closed the evidence of the defendant as well as rejected application under Order 13 Rule 10 CPC.

Shri N.P.Gupta appeared on behalf of the respondents on caveat. The petition has been heard finally at the stage of admission.

Counsel for the petitioner submitted that a suit for eviction of the suit property is pending trial before the trial Court in which defendant could not produce his evidence for various reasons and ultimately the evidence was closed without examining even defendant on 21.5.1999. Citing two judgments of this Court reported in 1999 DN J (Raj.) 5, Smt.Badami Vs Bhanwarlal and 1999 DNJ (Raj.) 11, Om Prakash Sharma and others Vs Ramdutt and another, he submitted that the justice should be done with the parties and even after 19 opportunities were given on earlier occasion, the defendant was allowed to lead evidence in Om Prakash Sharma''s case (supra). He submitted that looking to the nature of the suit it was not proper on the part of the trial Court to close evidence. He submitted that the certified copies of the documents were available on record and the petitioner defendant had prayed to summon the record which was also rejected by the learned trial Judge. He relying on 1996(1) WLC (Raj.) 495, Brijlal & Another Vs Ramesh Chandra, submitted that the learned trial Judge while ordering rejection of application did not give any finding whether the record sought was material to the suit or not and as such the trial Court has committed grave error in rejecting the application.

On the other hand, learned counsel for the respondents Shri N. P.Gupta submitted that when the defendant entered into the evidence, he some how or the other took adjournments and adjournments and when was not ready to bring evidence, the Court rightly passed the order of closing evidence. He submitted that it is the discretion of the Court to call for the record of another suit as per provisions of Order 13 Rule 10 CPC and no jurisdictional error has been committed in refusing to summon the documents. He has prayed that the revision petition should be dismissed.

So far as application under Order 13 Rule 10 CPC is concerned, the order rejecting the same is amenable to the revisional jurisdiction as per judgment of this Court in Brijlal''s case (supra). In this citation the trial Court had rejected the application without giving finding whether the record sought to be summoned was material to the suit or not. This is very much near to the case in hand because the learned trial Judge has not given reasons for rejecting the application. Admittedly, the documents which the defendant wants to show/proved are private documents and certified copies thereof will not be admissible in evidence. Therefore, the order rejecting the application should be set-aside.

So far as closing of evidence is concerned, it appears that the defendant who is a tenant, has delayed the trial and inspite of many opportunities, did not bring his evidence but his grossly negligent conduct has to be ignored for the present as the plaintiff can be compensated by awarding cost. The defendant was a tenant and he may be given an opportunity on payment of cost.

Looking to all the facts and circumstances of this case I allow this revision, set-aside the order closing evidence of defendant on payment of Rs.2.500/- as cost payable on 26.7.1999 before the trial Court and direct that the parties shall appear before the trial Court on 26.7.1999. On that date the trial Court shall fix a date for taking evidence of the defendant and his witnesses on the date to be fixed by the trial Court. No further adjournment shall be given in the case and if the witnesses are not kept present on that day and/or if the defendant does not remain present on that day, the evidence will be closed. If evidence is not completed in one day the case be kept continuously one very subsequent day till the evidence is over. The trial Court is further directed to summon the record wherein the original documents i.e. plaint and written statement of which certified copies have been filed is available. That record should be summoned by the trial Court to be produced on the date when the defendant''s evidence shall be recorded. A copy of this order shall be sent to the trial Court immediately.