SUJAYA MISHRA Vs. S S N HAKSAR

JUDGEMENT

(1.) MR . Lamba points out that the defendant in the suit, the petitioner before this Court (for short 'defendant'), was ex parte before the trial Court and re -entered proceedings on 10th January, 2014 after the ex parte order passed against him was set aside. Within this short span of time, defendant has been able to examine four of his defence witnesses. Learned counsel draws the attention of this Court to paragraph 2 of the application (P -6) to show that the defendant has acted with due diligence and taken effective steps before the trial Court for summoning the witnesses listed at A to E in the application. The summons were issued by the Court to the named witnesses but they failed to appear on the date fixed. A look at the application discloses that there are five official witnesses from different Banks in Lucknow and Bangalore from whom record of banking transactions between the parties is require to be produced. The parties are closely related to each other fighting to gain possession of the suit property.

(2.) THE grievance is that instead of giving adequate opportunity to the defendant due to absence of the defence witnesses to enable him to take further steps for summoning the witnesses, the application for setting aside the impugned order closing evidence, the same has been hurriedly dismissed by the the trial Court by the impugned order dated 13th February, 2014.

(3.) IT appears to this Court that manifest injustice has resulted to the defendant by not affording her an adequate opportunity to lead effective remaining evidence in support of her case. The main suit is a summary suit filed under Ss.38 and 39 of the Specific Relief Act, 1963 for possession and can have far reaching consequences on the issue of disputed possession of the residential flat in Gurgaon.