S K DEWAN Vs. K S MARWAHA

JUDGEMENT

(1.) This present Civil Revision, filed by the petitioners, is directed against an order dated the 10th October, 1997, passed by Shri A.K.Sarpal, Civil Judge, Delhi whereby the learned Civil Judge closed petitioners' evidence on the application filed by the respondent under Order XXXIX, Rule 2(A) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC').

(2.) The facts relevant for the disposal of the present petition lie in a narrow compass. The respondent Shri K.S.Marwaha has filed a suit (S.No.399/93 entitled K.S.Marwaha v. Shri S.K.Dewan & Anr.) for permanent injunction averring that the respondent is the owner and is in possession of agricultural land, measuring 1 bigha in Khasra No.645, situated at Village Malikpur Kohi @ Rangpuri, Tehsil Mehrauli, New Delhi. Alongwith the suit, the respondent/plaintiff has also filed an application under Order XXXIX, Rules 1 & 2 read with Section 151, CPC. An ex-parte ad interim stay was granted in favour of the respondent by Shri R.S.Mahla, the then Sub-Judge, Delhi. The petitioners contested the claim of the respondent by filing written statement. In the written statement, filed on behalf of the petitioners, it was stated that they were the owners in possession of the suit land. The petitioners also prayed for appointment of a Local Commissioner to visit the site. A Local Commissioner was appointed to visit the suit land. The Local Commissioner, Ms.Kanta Rana, Advocate submitted a Report dated the 29th April, 1994. The respondent filed objections to the Report of the Local Commissioner and also filed an application under Order XXXIX, Rule 2(A), Civil Procedure Code for initiating proceedings of contempt against the petitioners. The petitioners filed the reply to the above mentioned application. The learned trial Judge, on the above said application of the respondent filed under Order XXXIX, Rule 2(A), CPC, has framed the following issues on 31st January, 1995:

(3.) The evidence of the respondent/plaintiff was closed on 14th March, 1997. After the closure of the respondent/plaintiff's evidence, the matter was adjourned to 19th May, 1997 for petitioners' evidence. On 19th May, 1997, no witness on behalf of the petitioners was present and the matter was adjourned to 28th August, 1997. On 28th August, 1997 also no witness on behalf of the petitioners was present and as such the matter was adjourned to 10th October, 1997. It was made specifically clear that the petitioner/defendants were being given last opportunity. On 10th October, 1997, the Counsel for the petitioners/defendants was not available. The learned Civil Judge vide order dated 10th October, 1997 closed the evidence of the petitioners. The operative portion of the above said order reads as under:-