GANESHI SINGH Vs. MAHABIR SINGH & ORS

JUDGEMENT

(1.) The petitioner nos.1 to 4 are the legal heirs and successors of defendant no.1- Shahdeo Singh and the petitioner no.5 is the defendant no.2 in Partition Suit No.04 of 2007. They are aggrieved of order dated 10.08.2017 by which their application dated 01.08.2017 has been rejected. This application was filed for recall of order dated 03.05.2017 by which the defendants' evidence was closed.

(2.) Partition Suit No.04 of 2007 was instituted by Rameshwar Singh and Raghunath Singh for a preliminary decree for partition to the extent of half share for them in the suit schedule properties. During pendency of the suit both the plaintiffs died and in place of plaintiff no.2 his legal heirs and successors were substituted while plaintiff no.1 was deleted vide order dated 08.02009. The records would reveal that the suit was posted for the defendants' evidence on 03.10.2012 and by an order dated 15.07.2013 their evidence was closed; the suit was posted for arguments by order dated 23.11.2013. However, on an application of the defendants vide order dated 14.03.2014 the defendants were permitted to examine their witnesses subject to cost of Rs. 2,000/-. The plaintiffs have pleaded that the defendants did not deposit Rs. 2,000/- as imposed upon them by way of cost. It appears that thereafter the defendants were granted opportunities for more than 3 years to lead their evidence, however, when they failed to examine any witness on their behalf, by an order dated 03.05.2017 their evidence was closed. About 3 months thereafter, the defendants have filed an application on 01.08.2017 for recall of order dated 03.05.2017 and to permit them to examine their witnesses. In this application the defendants have pleaded that on account of death of defendant no.1 they were substituted and that is the reason the defendants could not examine their witnesses in the suit. This plea apparently is not correct. It was defendant no.1 who died during the pendency of the suit and legal heirs and successors of defendant no.1 were substituted vide order dated 20.09.2016. There is no explanation why the defendants could not lead evidence, particularly the defendant no.2, before the defendant no.1 died. Even after substitution of the defendant no.1, the defendants when failed to examine any witness for over 8 months, constrained, the trial Judge has closed the defendants' evidence. From the aforesaid facts it is apparent that more than sufficient opportunities were granted to the defendants to lead evidence and, not only that, their conduct has demonstrated that they are negligent litigants. Apparently, the trial Judge has rightly refused to permit the defendants to lead evidence at this stage.

(3.) Viewed thus, and for the reasons indicated hereinabove the writ petition is dismissed. The trial Judge is directed to conclude the hearing in the suit within 3 months, without granting any adjournment to any of the parties, but for just excuse.