HARWINDER SINGH Vs. SURJIT SINGH

JUDGEMENT

(1.) Challenge in the present revision petition is to the order dated 11.9.2014 (Annexure P/2) whereby the evidence of the petitioner-defendant in a suit for possession by way of specific performance of 12 Kanal 10 Marlas of land has been closed. A perusal of the paper-book would go on to show that the issues were framed by the trial Court on 25.4.2013 and the respondent-plaintiff concluded his evidence on 3.5.2014. The case was received by transfer on 25.7.2014 and it was wrongly noticed that no evidence of the plaintiff was present while adjourning the case on 1.8.2014. The trial Court thereafter on the said date corrected the earlier order that the case was actually fixed for evidence of defendant and adjourned the same for 14.8.2014 for defendant's evidence. No evidence being present on that date, costs of Rs. 500/- were imposed and the last opportunity was granted and the case was adjourned to 25.8.2014. On the said date Kuldip Singh DW1 was present but his cross-examination was deferred on the request of counsel for the respondent-plaintiff and he was bound down for 3.9.2014 and on which date he was cross examined and on the request of counsel for the petitioner-defendant case was adjourned to 11.9.2014 for his evidence subject to last opportunity. On the said date an application was filed that since the petitioner was a truck driver and stuck at Bangalore and he could not attend the Court and a request had been made for adjournment but the trial Court rejected the request of the petitioner-defendant vide impugned order dated 11.9.2014 on the ground that five effective opportunities had been afforded to the defendant to conclude his evidence and it was the last opportunity.

(2.) In view of the above admitted facts, there is no requirement of issuing notice to the respondent as it will unnecessarily entail unnecessary expenses and delay the matter. However, it is open to the respondent to file an appropriate application in case there is any concealment of fact.

(3.) After hearing counsel for the petitioner, this Court is of the opinion that the impugned order is not justified. Admittedly the suit was filed only in July, 2011. It took one year for the plaintiff to conclude his evidence. The case was received by transfer as noticed above on 25.7.2014 and rectification was done on 1.8.2014 and costs were imposed on 14.8.2014. Last opportunity was granted and on the next date, DW-1 Kuldip Singh was examined and his cross-examination was deferred on the request of counsel for the plaintiff-respondent and the same was completed on the next date i.e. 3.9.2014. Thereafter, impugned order dated 11.9.2014 was passed. Thus, in a short span of 1-1/2 month, the trial Court has shut out the case of the petitioner-defendant in a suit for specific performance where serious civil consequence involving immovable property is involved. On the specified date, the defendant was not available and it has been averred that he was a truck driver and stuck in the Bangalore which was not taken into consideration sympathetically. In such circumstances, this Court is of the opinion that the trial Court is not justified in closing the evidence of the defendant as defendant himself was a necessary witness to substantiate his defence which he had raised in his written statement. Accordingly, the present revision petition is allowed and the impugned order dated 11.9.2014 (Annexure P/2) is quashed.