Raj Kumar vs Joginder Pal

Chander Bhusan Barowalia, J.

1.The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner, who was the defendant before the learned trial

Court (hereinafter to be called as “the defendantâ€), against the order dated 22.06.2017, passed by learned Senior Civil Judge, Court No. 1,

Ghumarwin, District Bilaspur, H.P., in recovery suit No. 75-1 of 2011, whereby the evidence of the defendant was closed.

2.Briefly stating facts giving rise to the present petition are that the respondent/plaintiff (hereinafter to be called as “the plaintiffâ€), has filed a suit

for recovery of `1,00,000/- alongwith interest @ 18% per annum from the date of filing of the suit till its realization, against the defendant. The suit

was contested by the defendant by filing written statement. The plaintiff has examined his evidence and after completion of his evidence, the case

was listed for 22.06.2017 for the evidence of the defendant. Though, on the said date, the adjournment on behalf of the defendant has been sought on

the ground that his mother is admitted in the Hospital, however the learned trial Court, vide order dated 22.06.2017, closed the evidence of the

defendant with the observation that sufficient opportunities have already been given to the defendant to lead evidence on his behalf. Hence the present

petition.

3.I have heard the learned counsel for the parties and have gone through the record carefully.

4.Learned counsel for the petitioner/defendant has argued that the learned trial Court has not exercised the jurisdiction vested in it in a proper manner

and closed the evidence of the defendant without affording one more opportunity to him and, therefore, the order, passed by the learned trial Court be

set aside and the defendant may be permitted to examine his witnesses by granting one more opportunity. To substantiate his arguments, learned

counsel for the petitioner/defendant refers to Annexure P-4, discharge and follow up slip of Smt. Raina Devi, mother of the defendant. On the other

hand, learned counsel for the respondent has argued that the learned counsel appearing on behalf of the defendant should have brought to the notice of

the learned trial Court that mother of the defendant is admitted in the Hospital and as he has not done so, the order passed by the learned trial Court

cannot said to be unjust and present petition may be dismissed.

5.To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail.

6.It appears that on the date, the matter was listed for the evidence of the defendant, the mother of the defendant was admitted in the Hospital, which

is evident from Annexure P-4, discharge and follow up slip of Dr. Rajendra Prasad Govt. Medical College, Kangra at Tanda. The non-appearance of

the defendant on 22.06.2017, thus was beyond his control, as he has to look after his mother at that time when she was undergoing treatment of heart

disease. Further the distance between the Court and Dr. Rajendra Prasad Govt. Medical College, Kangra at Tanda is approximately 120 Kms thus,

the defendant could not come to the Court to lead evidence.

7.In these circumstance, this Court finds that to meet the ends of justice, the present petition is required to be allowed, as the circumstances, under

which the defendant could not lead evidence, were beyond his control. Accordingly, the present petition is allowed and order dated 22.06.2017, closing

the evidence of the defendant is set aside and the learned trial Court is directed to grant one more opportunity to the defendant to lead evidence.

Parties through their counsel are directed to appear before the learned trial Court on 2nd May, 2018.

8.The petition, so also pending miscellaneous application(s), if any, shall stand(s) disposed of accordingly.