Uma Kasli and Another vs Deepak Bhatia and Others

S.P. Bangarh, J.

CM No. 21018-CII of 2013

CM has been filed seeking exemption from filing the original certified copy of Annexure P3 and further permission has been sought to place on record the true typed copy, thereof. Keeping in view the facts and circumstances of the case, the CM is allowed and the petitioners are exempted from filing the original certified copy of Annexure P3 and they are permitted to place on record true typed copy, thereof.

CR No. 6343 of 2013

Petitioners are defendants nos. 1 and 2 respectively in case No. 331/CS instituted on 26.02.2008/09.01.2013, (now pending for 23.10.2013), by the respondents nos. 1 and 2, herein.

This is a suit for possession by way of specific performance of agreement of sale dated 11.02.2005 directing the petitioners, herein, to execute the sale deed and transfer the house No. 66, Sector 21, Panchkula measuring 300 sq. metre (14 marlas) alongwith all rights appurtenant, thereof, in favour of the respondents, herein, on receipt of balance sale consideration of Rs. 44,00,000/-. Permanent injunction has also been sought by the respondents seeking to restrain petitioners, herein, from alienating the suit house to anyone else than them. Respondent No. 3 has also been sought to be restrained to accord permission to the petitioners, herein, to sell the suit house to anyone else.

Earlier the suit was decreed exparte vide judgment and decree dated 06.01.2009 by the then Civil Judge (Senior Division), Panchkula. However, the petitioners, herein, filed an application for setting aside the exparte judgment and decree supra that was allowed by the then Civil Judge (Senior Division), Panchkula. The petitioners have already filed written statement and the respondents, herein, have closed their evidence on 02.08.2013. The case was then fixed for evidence of the petitioners, who are the residents of Ahmedabad and they could not come present on 22.08.2013 due to domestic problems for leading evidence and the suit was adjourned for 23.09.2013 for the evidence of the petitioners, as also, for arguments. But on the latter date, the suit was transferred to the Court of Civil Judge (Senior Division), Panchkula pursuant to the order dated 13.09.2013 passed by the learned District Judge, Panchkula. The counsel for the petitioners appeared before the Court of Civil Judge (Senior Division), Panchkula and sought adjournment for leading evidence by the petitioners in the first week of November 2013. But the matter was adjourned to 15.10.2013 for their evidence, if any, and for arguments.

Then on 15.10.2013, the matter was listed before the Court of Civil Judge (Senior Division), Panchkula. The learned counsel for the petitioners came to know that on 23.09.2013, the then learned Civil Judge (Senior Division), Panchkula had given last adjournment for 15.10.2013. On 15.10.2013, the petitioners could not come to attend the Court and their evidence was closed by order vide impugned order dated 15.10.2013. Now the case has been fixed for 23.10.2013 for rebuttal evidence, as also, for arguments.

Aggrieved against the order dated 15.10.2013 (Annexure P4), the petitioners, who are, defendants nos. 1 and 2 respectively before the learned trial Court have come up in this revision with prayer for setting aside the order dated 15.10.2013 (Annexure P4) and with prayer for grant of final opportunity to them to lead evidence.

Learned counsel for the petitioners contended that the latter could not appear in the trial Court on 15.10.2013, as they had a domestic problem. She further contended that even they had sought adjournment in the first week of November 2013. She further contended that the case is fixed for tomorrow and they may be permitted to lead evidence tomorrow and, thereafter, arguments may be heard and the case may be disposed of on merit. Even, she contended that when once the judgment was not pronounced on 15.10.2013 after the closing of the evidence of the petitioners and the case was adjourned for 23.10.2013, one opportunity could be granted to the petitioners to complete and conclude their evidence on 23.10.2013.

There is merit in the contentions raised by the learned counsel for the petitioners. The case is now fixed for 23.10.2013 for rebuttal evidence, as also, for arguments. It may be noticed that the petitioners had not led any evidence in this case. There was no occasion for posting the suit for rebuttal evidence. Indeed, when there was no evidence on behalf of the petitioners/defendants before the learned trial Court on 15.10.2013, the suit should have been decided on that very date. But when once he learned trial Court had chosen to adjourn the case for arguments, as also, for rebuttal evidence, then one adjournment for leading evidence by the petitioners (defendants) should also have been granted, as no prejudice was going to be caused to the respondents nos. 1 and 2, herein.

Even otherwise, when a harsh order like closure of evidence of defendants is to be passed, propriety requires that the judgment should be passed on that very date. Now the suit is fixed for 23.10.2013. The interest of justice demands that one opportunity should be granted to the petitioners to complete and conclude their evidence on 23.10.2013 at their own responsibility. If due to certain reasons, the learned trial Court remained unsuccessful in recording their evidence, then they may be granted one more adjournment to complete and conclude their evidence on the next date at their own responsibility and they shall not be entitled for assistance of the Court for summoning evidence through the agency of the Court.

Resultantly, the revision petition succeeds and is, hereby, allowed with no order as to costs; impugned order (Annexure P4) is set aside and the petitioners are allowed to lead their evidence on 23.10.2013 at their own responsibility. If due to certain reasons, the trial Court is unable to conclude evidence of the petitioners on 23.10.2013, in that event, one more adjournment shall be granted to them to complete and conclude their evidence at their own responsibility. A copy of this order be sent forthwith to the learned trial Court. This order has been passed without giving notice to the respondents, as this is not going to cause any prejudice to them. However, if aggrieved by this order, they can challenge this order by approaching this Court by filing appropriate petition.