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2018 DIGILAW 789 (HP)

Parkash Chand v. Avtar Singh

2018-05-02

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Article 227 of the Constitution of India, is maintained by the petitioner, who was the counter claimant before the learned Court below (hereinafter to be called as “counter claimant”), against the order dated 17.12.2016, passed by learned Civil Judge (Jr. Div.), Court No. 2, Ghumarwin, District Bilaspur, H.P., in Civil Suit No. 508-1 of 16/9, whereby learned Court below closed the evidence of the counter claimant and the learned Court below has disallowed the prayer to take into consideration the evidence already led in Civil Suit No. 582/1/11/03 by counter claimant. 2. Briefly stating facts giving rise to the present petition are that the non-counter claimant had filed a suit for grant of permanent prohibitory injunction against the counter claimant, which was dismissed in default for non prosecution on 19.12.2009, however the counter claim was proceeded as per law. Though, the counter claimant prayed before the learned Court below that the evidence, which they have already led in the Civil Suit No. 582/1/11/03, in which the counter claim was filed (however the suit was dismissed, vide order dated 19.12.2009) may be treated as evidence on behalf of the counter claimant, however learned Court below vide impugned order, declined the submission of the counter claimant and closed his evidence and fixed the case for the evidence of the non-counter claimant. Hence the present petition. 3. I have heard the learned counsel for the parties and have gone through the record available with this Court in detail. 4. Learned counsel for the petitioner/counter claimant has vehemently argued that the learned Court below should have granted one more opportunity to the counter claimant to lead evidence, thus order of the learned Court below, closing the evidence of the counter claimant may be set aside and the counter claimant may be permitted to lead evidence by granting one more opportunity. On the other hand, learned counsel for the respondent/non-counter claimant has argued that the order of the learned Court below is after granting sufficient opportunities to the counter claimant to lead evidence, hence order of the learned Court below needs no interference and the present petition may be dismissed with costs. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 6. 5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail. 6. After hearing the learned counsel for the parties and going through the records, it appears that on the date fixed, the counter claimant could not produce his evidence and remained under the impression that the evidence, which he has led in Civil Suit No. 582/1/11/03 will be read as an evidence in the counter claim too, however learned Court below has declined his request and closed evidence on his behalf. The order of the learned Court below in rejecting the prayer of the counter claimant to take into consideration the evidence led by counter claimant/defendant in counter claim is as per law, as the suit has been dismissed for default and no more survives, however this plea is not pressed by the learned counsel for the petitioner. 7. In the above stated circumstance, this Court finds that to meet the ends of justice, the present petition is required to be allowed and one more opportunity to lead evidence is required to be granted to the counter claimant. Accordingly, the present petition is allowed and order dated 17.12.2016, closing the evidence of the counter claimant is set aside, however subject to the costs of Rs.1,000/- and the learned Court below is directed to grant one more opportunity to the counter claimant to lead evidence. Parties through their counsel are directed to appear before the learned trial Court on 25th May, 2018. 8. The petition, so also pending miscellaneous application(s), if any, shall stand(s) disposed of accordingly.