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2008 DIGILAW 811 (RAJ)

Jagdish Prasad v. Additional District Judge, Neem

2008-03-17

NARENDRA KUMAR JAIN

body2008
JUDGMENT 1. - Heard learned counsel for both the parties. 2. With the consent of learned counsel for both the parties, the case is taken up for final arguments. 3. The final arguments are heard and the case is being disposed of finally. 4. This writ petition under Article 227 of the Constitution of India, on behalf of the plaintiffs, has been preferred against the impugned orders dated 23.10.1998 and 11.02.1999 (Annexures 1 and 2) passed by the trial Court, whereby the evidence of the plaintiffs was closed and an application filed on behalf of the plaintiffs to open the evidence was dismissed. 5. The plaintiff/petitioners filed a suit for possession and cancellation of the sale-deed against the defendants in the trial Court, which was fixed for plaintiff's evidence on 13.02.1996. The plaintiffs did not examine the evidence on about 15-dates fixed for this purpose. The trial Court closed the evidence on 23.10.1998. The plaintiffs, thereafter filed an application on 16.11.1998 stating therein that the plaintiff had been fallen ill on 20.10.1998 till 25.10.1998, therefore, he could not make himself present or his witness on 23.10.1998, resulting in closing his evidence. A medical certificate was also enclosed with the application and it was prayed that the plaintiffs may be afforded an opportunity to lead its evidence. The application was contested by the defendants. The trial court after hearing both the parties dismissed the application vide impugned order dated 11.02.1999. The plaintiffs challenged the said order before this Court by way of civil revision under Section 115, C.P.C., wherein the proceedings of the trial Court was stayed, but subsequently in view of the judgment of the Hon'ble Supreme Court in the case of Shiv Shakti, the civil revision was dismissed on 28.08.2003, and thereafter the present writ petition was preferred. 6. A notice to show cause was given to the respondents by this Court on 04.03.2004 and passing of final judgment was stayed, therefore, the suit is still pending before the trial court. 7. Learned counsel for the petitioners contended that although there was some negligence on the part of the plaintiffs in not examining himself and his witnesses, but the right to lead evidence is a valuable right and in case the same is not allowed, then the suit filed by the plaintiffs will be dismissed. 7. Learned counsel for the petitioners contended that although there was some negligence on the part of the plaintiffs in not examining himself and his witnesses, but the right to lead evidence is a valuable right and in case the same is not allowed, then the suit filed by the plaintiffs will be dismissed. He contended that on 23.10.1998, when the evidence was closed, the plaintiffs had fallen ill and a medical certificate was filed, along-with the application before the trial Court with a prayer to open the evidence of the plaintiffs, but the same was also rejected. He, therefore, contended that one last opportunity may be granted to the plaintiffs to lead its evidence, and so far as the delay in the proceedings is concerned, the defendants may be compensated by way of costs. 8. Learned counsel for the defendants/non-petitioners contested the matter and contended that in the facts and circumstances of the case, the learned trial Court was left with no alternative, except to close the evidence, therefore, the impugned orders passed by the trial Court should not be interfered with. 9. I have considered the submissions of the learned counsel for both the parties and examined both the impugned orders dated 23.10.1998 and 11.02.1999 (Annexures 1 & 2) passed by the trial Court, and after considering the same, I find that it is a clear case of negligence on the part of the plaintiffs, and the learned counsel for the defendants is right that it is not a fit case for interference in the impugned orders passed by the trial court. However, in the facts and circumstances of the present case, nature of suit and the right of plaintiffs to lead the evidence, I think it fit and proper that the ends of justice will meet, in case one last opportunity is granted to the plaintiffs to lead its evidence on payment of costs, and further that on that day the plaintiff himself will produce his all witnesses in the trial court without any request to the trial Court to summon them. 10. Consequently, the writ petition is allowed. The plaintiff/petitioners is granted one more, as last opportunity, to lead its entire evidence before the trial Court on 29.04.2008 on payment of costs of Rs.4,000/- to be paid before the aforesaid date to the defendants. 11. 10. Consequently, the writ petition is allowed. The plaintiff/petitioners is granted one more, as last opportunity, to lead its entire evidence before the trial Court on 29.04.2008 on payment of costs of Rs.4,000/- to be paid before the aforesaid date to the defendants. 11. Both the parties are directed to appear before the trial court on 29th April, 2008. The trial Court shall allow the plaintiffs to lead its evidence on the said date at his own and will see that the amount of costs is paid by the plaintiffs to the defendants before recording its evidence. In case there are number of witnesses, then the trial court will be free to record the plaintiffs' evidence on 30.04.2008 also. It is made clear that in case the amount of costs is not paid on or before 29th April, 2008 or the plaintiffs do not lead their evidence on the aforesaid dates, then the plaintiffs' evidence will be deemed to have been closed and no further opportunity will be granted for the said purpose. 12. There will be no order as to costs so far as this writ petition is concerned. 13. In view of above, the application filed by the petitioners dated 14.12.2007 also stands disposed of.Writ petition allowed. *******