J K JAIN Vs. KRISHNARAM BALDEO

JUDGEMENT

(1.) BY way of present petition, petitioner has challenged order dated 11. 01. 2008 whereby petitioner's application under Order 18 Rule 17 read with Section 151 CPC for recalling of PW1, Sh. P. K. Ram for his cross-examination has been dismissed.

(2.) IT is stated that respondent who is plaintiff before the learned trial court has filed a suit for recovery of Rs. 2,69,636. 04 against petitioner/defendant. The pleadings are complete. Issues have already been framed and the matter is at the stage of evidence. It is stated that the matter was fixed for respondent evidence on 23. 08. 2007, i. e. plaintiffs before the trial court. On the said date, counsel for petitioner/defendant had to appear in a case pending in this court. The details of said case are given in the petition. On the said date, apart from present case, counsel for petitioner/defendant had also to appear at Tis Hazari Court in a case where matter was fixed for arguments on an application under Order 39 Rule 1 and 2 read with Section 151 CPC. It is stated that after attending the matter in this court, the counsel for petitioner/defendant was held up in injunction matter where arguments continued uptil 1. 30 p. m. It is stated that counsel could not appear in time in the present case as such learned ADJ after waiting uptil 1. 20 p. m. closed plaintiff/respondent evidence. Thereafter, petitioner/defendant moved an application under Order 18 Rule 17 read with Section 151 CPC for recalling of said witness wherein the detailed reasoning was stated as to why the counsel for petitioner/defendant could not appear on 23. 08. 2007. Copies of proceedings were also attached to justify the bona fides. However, learned ADJ rejected the application vide impugned order dated 11. 01. 2008.

(3.) LEARNED counsel for petitioner/defendant submits that there was a justified reason for non-appearance of counsel on 23. 08. 2007 before pre-lunch session. It is further submitted that no adjournment was requested on that day and only request was made for passing over of the matter after lunch. It is stated that due to bona fide reasons as stated above, the counsel for petitioner/defendant could not appear. It is further submitted that the counsel for petitioner/defendant had already informed the counsel for respondent/plaintiff as well as witness that he may have to request for continuation of the matter after lunch on 23. 08. 2007 and they had not objected to it. It is submitted that the counsel was held up for reasons beyond his control and there is no intention for delaying the matter and the learned trial court has committed serious illegality in rejecting the application of petitioner/defendant for recalling of PW1, Sh. P. K. Ram for cross-examination.