Revision against orders closing plaintiff's evidence as default and dismissing recall application. Court found evidence closure unjustified due to lack of evidence of presence/false plea by respondents. Orders set aside.
Orders dated 27.5.2008 and 24.8.2011 set aside. Trial court directed to give petitioner a clear opportunity to examine witnesses.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
C.R. No.5600 of 2011 Date of Decision: 14.9.2011
Gurcharan Singh.
....... Petitioner.
Versus
Smt.Kartari and others.
...... Respondents.
CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK
Present: Shri Vikas Bahl, Advocate for the petitioner.
VIJENDER SINGH MALIK,J.
This is a revision petition brought by Gurcharan Singh, plaintiff against the order dated 27.5.2005, Annexure P2 and the order dated 24.8.2011, Annexure P5 vide which the evidence of the petitioner has been closed by the order of the court and his application under section 151 of the C.P.C. for recall of the order dated 27.5.2008 has been dismissed.
The plaintiff had filed a suit for specific performance of agreement of sale executed in his favour by Sadhu Ram, predecessorin-interest of defendant nos. 1 to 8 through his attorney defendant
C.R.No. 5600 of 2011
no.9. The suit was instituted on 22.3.2006 in which issues had been framed on 6.12.2006. The case was fixed for 9.5.2007 for evidence of the plaintiff/petitioner.
I have heard Shri Vikas Bahl, learned counsel for the petitioner and have gone through the record.
Learned counsel for the petitioner has submitted that on 27.5.2008, the petitioner had brought his evidence and he was given the date of 6.8.2008. According to him, when the counsel for the parties reached the court on 6.8.2008, it was found that the evidence of the plaintiff stood already closed vide order dated 27.5.2008. He has taken me through the orders passed in the civil suit right from the date of framing of issues till 10.1.2009. He has submitted that the court has not afforded adequate opportunity to the petitioner for leading his evidence and he has prayed for grant of one clear and effective opportunity to the petitioner to be given to lead his evidence by examining all the witnesses produced by him on that date and tendering his admissible documentary evidence.
May 9,2007 had been the date for evidence of the plaintiff. On that date, no evidence was present and on prayer, the case was adjourned to 10.10.2007. On 10.10.2007, the plaintiff came with four witnesses and tendering their affidavits, completed their examination-in-chief. Their cross-examination was deferred on the
C.R.No. 5600 of 2011
request of the defendants whose counsel was not present on that day. On 3.1.2008, the next date, evidence of the plaintiff was not present and a date was requested which was granted subject to payment of Rs.200/- as costs for 27.5.2008. It is vide order dated 27.5.2008 that the evidence of the plaintiff has been closed.
It is mentioned in the order dated 27.5.2008 that no evidence of the plaintiff is present and even previous costs had also not been paid. Finding no justification for grant of further adjournment, the evidence of the plaintiff was closed for the reason that the plaintiff had already availed more than adequate opportunities.
Even if it is not believed that on 27.5.2008, the evidence of the plaintiff was present and the date was given for the plaintiff's evidence for 4.8.2008, still adequate opportunities had not been given to the plaintiff for his evidence. The costs of Rs.200/- was to be paid to the District Free Legal Aid Fund and not to the opposite party.
Annexure P3 is the copy of the application filed by the plaintiff under section 151 of the C.P.C. for recall of the order dated 27.5.2008. He has specifically mentioned in this application that the plaintiff and his witnesses were present on 27.5.2008 and the case was fixed for evidence of the plaintiff for cross-examination of the witnesses and other witnesses for 6.8.2008. Annexure P4 is the copy
C.R.No. 5600 of 2011
of the reply filed by the respondents in this case. In this reply, the presence of the plaintiff and witnesses on 27.5.2008 is denied for want of knowledge. The defendants can not take this vague plea. If there was representation of the defendants before the trial court, the reply has to be specific either denying the allegation or admitting the same. Therefore, there is no specific denial to the allegation of the plaintiff that he had brought the evidence on 27.5.2008 and there was no cause for closing his evidence.
In these circumstances, I find that the order dated 27.5.2008 closing the evidence of the plaintiff is wholly unjustified. As the order dated 24.8.2011 dismissing the application for recalling of this order is based on the said order, both these orders are liable to be set aside. Consequently, the petition is accepted and the order dated 27.5.2008, Annexure P2 and the order dated 24.8.2011, Annexure P5 are set aside. The trial court is directed to give one clear and effective opportunity to the plaintiff for which it would give adequate time to the plaintiff for production of his evidence, oral as well as documentary and if his witnesses could not be examined on that date, then those witnesses are to be examined on any subsequent date to be fixed by the trial court.
September 14,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE
2 issues framed by the court
Whether the trial court discharged the petitioner's evidence without adequate opportunity.
Whether the order closing the petitioner's evidence and the order dismissing the recall application are justified.
1 provisions across 1 enactments
Gurcharan Singh
Smt. Kartari and others
VIJENDER SINGH MALIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
