DINESH KUMAR Vs. SURESH KUMAR

JUDGEMENT

(1.) The petitioner (defendant No.2) through this revision petition under Article 227 of the Constitution of India has challenged order dtd. 12/1/2024 (Annexure P-1) whereby the evidence of defendant No.2 was closed by Court order.

(2.) The facts of the case, succinctly, are that respondent No.2/plaintiff-Laxmi Devi filed a suit praying for a decree of symbolic possession by way of specific performance of agreement to sell dtd. 28/5/2005 of Plot No.429, Sector 6, HUDA, Panipat with consequential relief of permanent injunction. The suit was contested and the proceedings therein continued, wherein the petitioner appeared as DW-5 and was examined in-chief on 3/7/2019. However, his cross- examination was deferred on the request of counsel for respondent No.2/plaintiff and the trial was adjourned for cross-examination of the petitioner as well as remaining evidence of the defendants. At that stage, an application under Sec. 66 of the Indian Evidence Act was filed by one of the defendants, which was dismissed vide order dtd. 25/9/2019. The said order was challenged before this Court by way of revision petition, which was disposed of on the consensus of the parties that defendant No.1 shall be permitted to summon the witness concerned. Accordingly, vide order dtd. 7/11/2023, after noticing the order passed by this Court, the proceedings were adjourned to 18/11/2023 for defendants evidence. From 18/11/2023 till passing of the impugned order on 12/1/2024, as many as 05 short adjournments have been availed. The trial Court vide order dtd. 8/1/2024 i.e. one preceding the impugned order, after noticing that petitioner/defendant No.2 had availed several effective opportunities but despite that failed to conclude his evidence, granted one more opportunity for the same. The petitioner was also cautioned of the consequences on failing to conclude his evidence i.e. evidence of defendant No.2 would be deemed to be closed by Court order. The evidence of defendant No.2 was closed by order of the Court on 12/1/2024. Hence, the instant revision challenging the same has been filed by the petitioner.

(3.) Learned counsel for the petitioner submits that petitioner/defendant No.2 had been examined in-chief on 3/7/2019 and his cross-examination was deferred at the request of counsel for respondent No.2/plaintiff. Thereafter, the cross-examination of the petitioner could not be recorded on account of the pendency of revision petition preferred before this Court impugning order dtd. 25/9/2019 whereby an application filed under Sec. 66 of the Indian Evidence Act was dismissed. Thereafter, the proceedings were impacted on account of COVID-19 pandemic. It is further submitted that in the revision petition preferred against the order dtd. 25/9/2019, the parties were ad idem before this Court that the applicant/defendant shall be permitted to summon the witness concerned and the said revision petition was disposed of as such. It is contended on behalf of the petitioner that on account of short dates being granted after 7/11/2023, petitioner was not in a position to conclude his evidence and he was also not cross-examined as such. He thus prayed for grant of one opportunity to the petitioner/defendant No.2 to conclude his entire evidence, including his cross examination and the other side can be compensated with costs. The petitioner also undertakes to present himself for cross- examination, which was deferred at the request of counsel for the plaintiff, on the next date itself before the trial Court. The petitioner would be severely prejudiced in case the petitioner is not granted one effective opportunity to conclude his evidence.