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2015 DIGILAW 1171 (HP)

Ravi Dutt v. Joga Singh

2015-08-26

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This petition is directed against the order dated 1.2.2014, rendered by the learned Civil Judge (Sr. Divn.), Nalagarh, H.P. in case No. 56/1/2011. 2. “Key facts” necessary for the adjudication of this petition are that petitioner-plaintiff (hereinafter referred to as the plaintiff) has instituted a suit for specific performance of agreement to sale dated 31.7.2007, whereby the respondent-defendant (hereinafter referred to as the defendant) has agreed to sell the land measuring 0-10 biswas alongwith the structure standing thereon. 3. The written statement was filed by the defendant. The issues were framed by the learned trial Court on 25.9.2012. The matter was ordered to be listed for evidence of the plaintiff for 13.12.2012. Since no steps were taken by the counsel for the plaintiff, the matter was adjourned for 29.1.2013. Thereafter, again the counsel for the plaintiff failed to take steps and the matter was adjourned for 14.5.2013. The matter was again taken up on 22.10.2013 and listed for plaintiff’s evidence on 24.12.2013. The plaintiff was directed to take steps within 5 days, failing which, the evidence was to be produced at self responsibility. On 24.12.2013, one PW Preet Mohinder Singh was examined the summons issued to the other witnesses were received unserved. They were directed to be served through dasti process for 1.2.2014 on taking necessary steps within three days, filing which, the evidence of the plaintiff was deemed to have been closed. 4. I have heard Ms. Devyani Sharma, for the petitioner and gone through the impugned order dated 1.2.2014, carefully. 5. The fact of the matter is that on 1.2.2014, statement of one PW Sukhwinder Singh was recorded. No other PWs were present. The evidence of the plaintiff was closed on 1.2.2014 and thereafter, the matter was listed for defendant’s evidence on 5.6.2014. No evidence on behalf of defendant was present on 5.6.2014. Thereafter, the evidence of the defendant was also closed on 16.8.2014. The matter was referred to Special Lok Adalat scheduled to be held on 23.8.2014. The matter was not settled in the Special Lok Adalat. Thereafter, the matter was listed for final hearing on 28.10.2014 and then for 9.12.2014. 6. Ms. Devyani Sharma, Advocate, for the petitioner has vehemently argued that the plaintiff’s counsel has not disclosed to the plaintiff about the factum of closing of his evidence on 1.2.2014. The matter was not settled in the Special Lok Adalat. Thereafter, the matter was listed for final hearing on 28.10.2014 and then for 9.12.2014. 6. Ms. Devyani Sharma, Advocate, for the petitioner has vehemently argued that the plaintiff’s counsel has not disclosed to the plaintiff about the factum of closing of his evidence on 1.2.2014. The plaintiff has been operated upon for transplantation of kidney. He deputed one Swaranjeet Singh to enquire about the proceedings of the case to Nalagarh. He visited Nalagarh on 21.11.2014. The case file was examined and it transpired that the evidence of the petitioner has been closed by the order of the Court on 1.2.2014. Thereafter, the present petition was filed. 7. The respondent was duly served, however, there is no representation on his behalf. The issues were framed by the trial Court on 25.9.2012. The plaintiff has placed on record medical evidence to prove that he was suffering from kidney ailment. It was the responsibility of the plaintiff’s counsel to procure the presence of all the witnesses by taking necessary steps. The statement of one witness was recorded on 24.12.2013 and thereafter the statement of another witness Sukhwinder Singh was also recorded on 1.2.2014. The plaintiff has taken all the necessary steps by engaging the counsel and instructing him to take all necessary steps to produce witnesses. The defendant has also not led his evidence despite repeated opportunities. The trial Court has taken a hyper-technical view by not giving at least one more opportunity to the plaintiff to produce the remaining witnesses. The plaintiff came to know only in the month of November, 2014 that his evidence has been closed and thereafter, he has approached this Court by filing the present petition on 12.12.2014. It cannot be said that the present petition is delayed. Moreover, no prejudice would have been caused to the defendant if one more opportunity was granted to the plaintiff to lead evidence. The plaintiff cannot suffer for the negligent acts of his counsel. 8. Accordingly, the petition is allowed. The order dated 1.2.2014 passed in Civil Suit No. 56/1/2011 alongwith order dated 16.8.2014 are quashed and set aside. The plaintiff is allowed to produce his entire evidence on 18.9.2015 before the learned trial Court. It shall be open to the defendant to lead his evidence after recording of the plaintiff’s evidence in accordance with law. The order dated 1.2.2014 passed in Civil Suit No. 56/1/2011 alongwith order dated 16.8.2014 are quashed and set aside. The plaintiff is allowed to produce his entire evidence on 18.9.2015 before the learned trial Court. It shall be open to the defendant to lead his evidence after recording of the plaintiff’s evidence in accordance with law. The parties are directed to appear before the trial Court on 18.9.2015.