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2014 DIGILAW 278 (HP)

Union of India v. Parmod Sood

2014-03-26

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chuhan, J. 1. This revision petition has been preferred by the petitioner/defendant against the order dated 22.11.2013 passed by learned Civil Judge (Jr. Division), Court No. (7), Shimla, H.P. in RBT No. 143-1 of 2009/08 whereby the evidence of the petitioner/defendant was closed. 2. It has been averred that the only one witness was to be examined, who was an official witness and was to be produced on self responsibility and consequently on the last date i.e. 22.11.2013 for non-production of the said witness, the learned Court below closed the evidence of the petitioner/defendant despite the fact that a prayer for adjournment was made, resulting in filing of the revision petition. The said order termed to be illegal, harsh and materially illegal and liable to be set aside on the grounds: "(i) that the learned Court below had failed to appreciate the fact that subsequent to 15.1.2013 the defendant was producing the evidence after this date, but since the Judge of the Court was transferred, as such the case was posted for proper orders and further on 1.7.2013 the same order was recorded by the office of the Court which fact was not appreciated by the Court below resulting into failure of justice; (ii) That subsequently thereafter on 1.7.2013 the next date was fixed for 30.7.2013, but on this date also, the Presiding Officer of the Court was not present, then the case was posted for 5.9.2013, on which date the evidence of the defendant was present. However, the case was fixed for 18.10.2013 for service of notice to the parties and on this date there was no Court work as the Bar was on strike and proxy lawyers appeared in the case; (iii) That the learned Court closed the evidence of the defendant/petitioner though for this date the defendant witness was not in station and had incidentally gone to Kalka on very urgent call requiring his presence there and prayer to this effect was made but was not considered by the Court." 3. On dasti notice being issued, the respondent is now served and duly represented by Sh. G.C. Gupta, Senior Advocate, assisted by Ms. Meera Devi. Vide order dated 14.3.2014, the records of the case was summoned and the case was fixed for arguments. 4. On dasti notice being issued, the respondent is now served and duly represented by Sh. G.C. Gupta, Senior Advocate, assisted by Ms. Meera Devi. Vide order dated 14.3.2014, the records of the case was summoned and the case was fixed for arguments. 4. I have gone through the records of the learned trial Court and find that the petitioner/defendant has been afforded many opportunities to lead the evidence. In fact, the case has been fixed for recording of the evidence of the petitioner/defendant w.e.f.16.3.2012 till 22.11.2013 as many as eight times when ultimately the defendant's evidence was closed by the order of the Court. Though, no doubt, the case could not be taken up for recording of the evidence on 3.6.2013, 1.7.2013, 30.7.2013, 5.9.2013 and even on 18.10.2013 for no fault of the defendant. But the fact nonetheless remains that the defendant/petitioner has been afforded sufficient opportunities to lead the evidence. 5. By way of the present petition, the petitioner has requested for one opportunity to lead the evidence that too by bringing the witnesses on self responsibility. 6. This request of the petitioner is opposed by the learned counsel for the respondent, who has stated that more than ample opportunities have been granted to the petitioner and therefore, no fault can be found with the impugned order. He has further relied upon the ratio of the judgment delivered in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Another vs. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76 to contend that this Court would not interfere in exercise of its power under Section 115 even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. 7. I have given my thoughtful consideration to the rival submissions of the learned counsel for the parties. 8. No doubt, the petitioner/defendant has been granted sufficient opportunities to lead its evidence. However, nonetheless the fact remains that the petitioner/defendant unlike an individual is Government department which fact cannot be ignored. Ultimately, it would not be an individual which would be affected in case the impugned order is permitted to stand, but what, in the ultimate analysis, suffers would be the public interest. However, nonetheless the fact remains that the petitioner/defendant unlike an individual is Government department which fact cannot be ignored. Ultimately, it would not be an individual which would be affected in case the impugned order is permitted to stand, but what, in the ultimate analysis, suffers would be the public interest. Even otherwise, it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. It is settled law that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. (Collector Land Acquisition vs. Katiji (1987) 2 SCC 107 ). This Court is not unmindful of the fact that the respondent/plaintiff has been dragged into unwarranted and otherwise avoidable litigation but at the same time he can definitely be compensated for the same. 9. Therefore, taking into consideration the entire facts and circumstances, the order dated 22.11.2013 passed by learned Civil Judge (Jr. Division) Court No. 7, Shimla, H.P. in Civil Suit No. 143-1 of 2009/08 RBT No. 143-1 of 2009/08 is ordered to be set-aside. However, this would be subject to costs of Rs. 25,000/- which shall be deposited on or before the next date of hearing before the learned trial Court. Further it is made clear that the parties would appear before the learned trial Court on 1.4.2014 when the learned trial Court will fix a date for recording the evidence of Dinesh Kumar, Assistant Engineer, Railways, the sole witness sought to be examined by the defendant, who shall be brought by the defendants on their own responsibility. No further opportunity would be granted to the defendants to lead its evidence. 10. Accordingly, subject to the aforesaid conditions, the petition is allowed in the aforesaid terms. The pending application, if any, also stands disposed of. Petition allowed.