Sudesh Rani vs Ashok Kumar and Others

Ram Chand Gupta, J.—C.M. No. 5962-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 1478 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India against order dated 1.10.2010, Annexure P3, vide which the evidence of the Petitioner has been closed by court order.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of present revision petition are that a suit for possession by way of specific performance of agreement to sell dated 16.7.2004 was filed by Respondent Nos. 1 and 2-Plaintiffs against present Petitioner and Respondent Nos. 3 to 8. It is alleged that Petitioner and her husband entered into an agreement with Respondent Nos. 1 and 2-Plaintiffs. Written statement was filed by present Petitioner alleging that she never entered into any such agreement and the same was not signed by her. Suit was also contested by other Respondent-Defendants. Respondent Nos. 6 and 7 are stated to be subsequent vendees. Issues were framed. Case was fixed for evidence of the Plaintiffs. As per zimini orders, reproduced in the petition by learned Counsel for the Petitioner, present Petitioner along with Defendant Nos. 1 and 3 to 5 were proceeded ex parte by learned trial Court vide order dated 2.8.2010 and however, on the next date of hearing, i.e., 12.8.2010, ex parte proceedings against present Petitioner and Defendant Nos. 1 and 3 to 5 were set aside by observing that the order was wrongly passed and that the counsel for the Petitioner was present on that day. Hence, the case was adjourned for remaining evidence of the Plaintiffs. Evidence of Plaintiffs was concluded on 17.8.2010 and the case was adjourned to 25.8.2010 for evidence of Defendants. However, in the interim order dated 25.8.2010, again present Petitioner-Defendant was shown as ex parte by learned trial Court ignoring the fact that ex parte proceedings had already been set aside vide order dated 12.8.2010. Again in inter locatory order dated 9.9.2010, present Petitioner-Defendant has been shown ex parte. In order dated 16.9.2010, the mistake was again corrected and the case was adjourned to 25.9.2010 for evidence of Defendant Nos. 1 and 2. However on 25.9.2010, when no evidence of present Petitioner was present, the case was again adjourned to 1.10.2010 for evidence of Defendant Nos. 1 and 2. When on 1.10.2010 again no evidence of Defendant Nos. 1 and 2 was present, the same was closed by the order of the Court and the case was adjourned for evidence of Defendant Nos. 3 to 5.

It has been contended by learned Counsel for the Petitioner-Defendant No. 2 that case is still at the stage of evidence of Defendants and hence only one opportunity may be granted to the Petitioner to conclude her evidence.

In view of these facts, one opportunity can be granted to Petitioner-Plaintiff to close the evidence at her own responsibility and the other party can be compensated by way of cost.

Hence, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to grant one effective opportunity to Petitioner-Defendant to conclude her entire evidence at her own responsibility subject to payment of Rs. 5,000/- as cost, which shall be a condition precedent.