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2013 DIGILAW 263 (HP)

VEERO DEVI v. BIHARI LAL

2013-04-08

V.K.SHARMA

body2013
JUDGMENT V.K.SHARMA, J. - 1. IN view of the nature of the order that is proposed to be passed in the present revision petition under Section 115 of the Code of Civil Procedure, 1908 (in short 'CPC') filed by the petitioner (defendant No.4) laying challenge against the order dated 21.2.2013, whereby the learned trial court has closed her evidence by order of the court, issuance of notice to contesting respondent No.1 (plaintiff) is dispensed with. Notice need not be issued to respondents No.2 to 4 (defendants No. 2 to 4), being proforma respondents. 2. ON 5.2.2013 the learned trial court had granted the prayer of defendant No.4 for grant of 15 days time to lead remaining evidence in defence. However, the list of witnesses was filed quite belatedly only on 18.2.2013, which was taken up on 19.2.2013 and orders as regards filing of process fee and diet money were passed. However, defence on behalf of defendant No.4 was closed vide order dated 21.2.2013, which reads as under:- "21-02-2013. Present : Shri K.K.Sarmai, ld. Advocate for plaintiff. : Shri K.S. Jaryal, ld. ADA for defendant No.1. : Shri Babu Ram, Advocate for defendant No.4. : Defendants No. 2 and 3 already exparte. Statement of DW-3 Smt. Veero Devi recorded and taken on record. Ld. counsel for the defendant No.4 again prayed for D.Ws. Perusal of record reveals that ld. counsel for the defendant No.4 has moved an application dated 19-02-2013 for summoning the witnesses and for depositing Diet Money. Record further reveals that the case is pending for DWs since 03-12-2008 and defendants have already availed as many as 18 opportunities either on one pretext or the other. On the last date of hearing, i.e. 05-02-2013, ld. counsel for defendant No.4 prayed only 15 days time for DWs but again he examined defendant and just two days ago, filed on record list of witnesses and diet money. I am of the view that the ld. counsel for defendant No.4 could have moved that application either on the last date of hearing or promptly on the next day. The conduct of defendant No.4 is evident from the record itself. The object of defendants appears to cause delay and delay only. Therefore, request of the ld. counsel for the defendant No.4 is rejected. The evidence of defendant No.4 is closed by the order of the Court, in the interest of justice. The conduct of defendant No.4 is evident from the record itself. The object of defendants appears to cause delay and delay only. Therefore, request of the ld. counsel for the defendant No.4 is rejected. The evidence of defendant No.4 is closed by the order of the Court, in the interest of justice. Vide separate statement, ld. counsel for plaintiff closed evidence in rebuttal after tendering document Ex.PA. Now to come up for arguments on 26-02-2013. Sd/- Civil Judge(Jr. Divn.)-II Dehra, Distt. Kangra-HP." Though cumulatively the defendants before the learned trial court, who are four in number, were granted as many as eighteen opportunities to lead evidence and defendant No.4 was quite lax in filing the application for summoning remaining evidence, yet with a view to afford an opportunity to her to have a verdict on merits after due contest, I am satisfied that it shall be in the interest of justice that she is granted another chance to adduce the entire remaining evidence on her behalf subject to payment of costs of Rs. 5,000/- (rupees five thousand) to the plaintiff to be tendered before the learned trial court, on the day remaining evidence on her behalf is examined. Ordered accordingly. 3. IN view of the above, the petition is allowed and the impugned order dated 21.2.2013 is set aside with a direction to the petitioner to appear before the learned trial court on 24th April, 2013 and take further steps, if any, for summoning her witnesses mentioned in the application dated 18.2.2013, for a date to be fixed by the learned trial court. In addition to summons to be served on the witnesses through the process serving agency, dasti summons shall also be made available to defendant No.4 on usual terms, so that she may take effective steps to serve them so as to obviate any possibility of any further delay in final disposal of the case. 4. THE petition as also pending CMP No. 420 of 2013 for grant of interim relief stand disposed of in the above terms. As records of the learned trial court have not been requisitioned, let a copy of this order/judgment be sent to the said court for information and compliance forthwith.