Sukhbir Singh and another vs Harbilas Singh and others

Rajesh Bindal, J.—Prayer in the present petition filed under Article 227 of the Constitution of India is for setting aside order dated 5.9.2011 passed by the learned court below, whereby evidence of the petitioners-plaintiffs was closed by order of the court. The proceedings in the present case arise out of a suit for injunction filed by the petitioners-plaintiffs against the respondents-defendants.

Learned counsel for the petitioners submitted that the suit was filed by the petitioners-plaintiffs on 26.7.2007. Petitioner no. 1 is nephew of the respondents. After filing of written statement, the case was fixed for framing of issues. However, defendant nos. 1 and 2 were proceeded against ex-parte. Thereafter, they filed application for setting aside ex-parte order, which was allowed on 18.5.2008. The case was fixed for the first time for evidence of the petitioners only on 12.3.2010. The petitioners in their evidence examined three witnesses including petitioner no. 1 as PW3. However, his cross-examination was deferred on the request of counsel for the respondents-defendants. But the learned court below on 5.9.2011 closed the evidence of the petitioners by order. Learned counsel for the petitioners submitted that the petitioners are not at all responsible for delay, rather, it is the respondents, who earlier did not appear and were proceeded against ex-parte. The petitioners have tried their best to conclude the evidence but due to reasons beyond their control, it could not be concluded. They only want to get petitioner no. 1 cross-examined. He prays that in case one opportunity is granted, petitioner no. 1 will appear in the court on the next date i.e. 3.4.2012 to get himself cross-examined.

On the other hand, learned counsel for the respondents submitted that the suit was filed by the petitioners in the year 2007. They only want to grab the property. They have availed of numerous opportunities to lead their evidence. The submission is that in view of the fact that the petitioners have availed of number of opportunities, the impugned order passed by the court below be upheld. In support of his arguments that the learned court below has rightly closed the evidence of the petitioners, learned counsel for the respondents placed reliance upon judgment of Hon''ble the Supreme Court in Shiv Cotex Vs. Tirgun Auto Plast P. Ltd. and Others, and 2001 (1) CCC 0114 Sarjeet Kaur vs Gurmail Singh (P&H).

Heard learned counsel for the parties and perused the paper book.

The facts of the case are borne out from the record produced by the parties. As is evident from the zimni orders, it is not that only the petitioners were responsible for delay. Earlier defendant no. 1 and 2 were proceeded against ex-parte due to their non-appearance and thereafter, the application for stay remained pending. The case is stated to be fixed before the court below on 3.4.2012.

No doubt, Hon''ble the Supreme Court in M/s. Shiv Cotex''s case (supra), has opined that after closer of evidence of any of the parties to the litigation, the principle that one more opportunity be granted is not to be applied mechanically. Though the provision that only three opportunities are to be granted to the parties to lead their evidence is not mandatory, but still a case has to be made out in case any further opportunity is to be granted. In the present case when plaintiff no. 1 had appeared in court as PW3, he tendered his affidavit of evidence in chief. His cross-examination was deferred on the request of counsel for the defendants. On the next date of hearing, though two other PWs were present and examined, however, plaintiff no. 1 could not appear for his cross-examination on account of certain unavoidable reasons when the evidence was closed. Considering the fact that it is a dispute between the family members, with the decision on merits of the controversy after the parties lead their evidence, the same may be settled, in my opinion, the petitioners deserve to be granted one opportunity to present plaintiff no. 1 for his cross-examination. The same shall be on the next date of hearing fixed before the court below i.e. 3.4.2012. The same shall be subject to payment of Rs. 2,500/- each as cost to each of the three defendants by way of demand draft. Payment of costs shall be pre-condition. The impugned order passed by the learned court below is modified accordingly. It is, however, made clear that no further opportunity shall be granted. The revision petition is disposed of in the manner indicated above.