PARKASH CHAND Vs. BALBIR SINGH

JUDGEMENT

(1.) This civil revision petition is filed challenging order dated 15.01.2011 wherein evidence of the side of the plaintiff -petitioner was closed and the matter was put up for evidence of the defendant on 04.02.2011. In the order it is stated that despite lapse of number of hearings the statement of witnesses was not recorded by the plaintiff. Today also witness of the plaintiff is not present. Even though notice was served to the respondent in this revision as early as on 08.03.2011, he has chosen not to appear to oppose the prayer seeking setting aside of the order impugned. Learned counsel for the petitioner submitted that on 13.11.2010 when the witness was present to give evidence the presiding officer was on leave, therefore, the matter was posted for 20.12.2010 and on that date witness of the plaintiff namely Chajju Raj was present in the Court for recording his evidence. However, on the said date due to paucity of time the case was adjourned for 02.01.2011 and the said date being a holiday the case was posted on 03.01.2011 and then on 15.01.2011. On 15.01.2011 the witness could not appear before the Court due to unavoidable circumstances and having regard to the fact that the witness was present on 13.11.2010 and 20.12.2010 and 02.01.2011 being the holiday the file was taken up on 03.01.2011, the witness could not be present and only one time this witness was not present i.e. on 15.01.2011 which is not wanton. Learned counsel has relied on the decision reported in : (2010) 6 SCC 583 (Amrit Lal Kapoor and another v/s. Kusum Lata Kapoor and others) by stating that if witness could be present for valid reasons closure of evidence is not proper.

(2.) Since sufficient cause is shown and the facts narrated above establish the fact that the witness was always present except on 15.01.2011, this Court is of the view that the petitioner shall be given a chance to give his evidence. Hence this civil revision petition is allowed setting aside the impugned order dated 15.01.2011. Petitioner is granted liberty to produce the witness(s) for recording the evidence and if the petitioner -plaintiff is not able to produce the witness in one or two dates then it is open for the trial Court to close the evidence on behalf of the plaintiff and proceeded in accordance with law.