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2018 DIGILAW 791 (HP)

Partap Singh v. Inderjeet Singh

2018-05-02

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Cmp(M) No.42 of 2018. By medium of this application, the applicants-petitioners have sought condonation of 49 days'' delay that has crept up in filing of the present revision petition. A perusal of the application, more particularly, the contents of paras 2 and 3 thereof, discloses sufficient cause which prevented the applicants-petitioners from filing the revision petition within the prescribed period of limitation. Accordingly, the aforesaid delay is condoned. Application stands disposed of. Revision be registered. Civil Revision No. 88 of 2018. 2. The petitioners-defendants aggrieved by the order passed by the learned trial Court on 28.07.2017, whereby the right to lead evidence has been closed by the order of the Court, have filed the present revision petition under Section 115 of the Code of Civil Procedure. 3. Brief facts giving rise to the present revision petition are that the respondent-plaintiff had filed a suit for permanent prohibitory injunction and mandatory injunction under Sections 34, 38 and 39 of the Specific Relief Act. The respondent-plaintiff led his evidence, but the petitionerdefendant No.1 despite repeated opportunities did not lead the same and finally vide order dated 28.07.2017 (impugned order) , his right to lead evidence has been closed by the order of the Court. 4. It is vehemently argued by Shri Vinod Chauhan, Advocate, appearing for the petitioners that it is only on account of compelling circumstances that petitioner-defendant No.1 could not lead his evidence. He would further argue that petitioner-defendant No.1 even otherwise was not gaining anything by not leading evidence, but would be at the receiving end in case the order passed by the learned trial Court is allowed to stand. It is further argued that petitioner-defendant No.1 is serving in the Army and due to communication gap, he could not lead evidence despite opportunities having been granted by the learned trial Court. 5. On the other hand, Shri Bimal Gupta, learned Senior Advocate assisted by Ms.Rubeena Bhatt, Advocate, for the respondent, would strongly urge that the respondent-plaintiff cannot be made to undergo the agony of protracted litigation which is never ending process and, therefore, cannot be allowed to be in perpetuity especially when the petitioner-defendant No.1 has been afforded more than adequate opportunities to lead his evidence. I have heard the learned counsel for the parties and gone through the material placed on record. 6. I have heard the learned counsel for the parties and gone through the material placed on record. 6. Undoubtedly, petitioner-defendant No.1 has been granted as many as five opportunities to lead his evidence. Petitioner-defendant No.1, as a matter of right, cannot claim a special indulgence for leading the evidence. However, in the given facts and circumstances of the case, the Court is guided by the compulsions of equity, justice and good conscience, more particularly, when petitioner No.1 is admittedly an army personnel and remains posted in remote and difficult areas and, therefore, it is not difficult to believe that due to compulsion of service, there was a communication gap between him and his counsel. This Court possesses its inherent powers to be exercised "ex debito justitiae" to do real and substantial justice for the administration of which alone the Courts exist. The whole idea, is to do, real, complete and substantial justice. 7. At this stage, it needs to be mentioned that no doubt the respondent-plaintiff has been dragged into un-necessary and otherwise avoidable litigation, but then in the given facts and circumstances, he can always be compensated. After all, invariably in civil litigation, costs are the panacea and the respondent-plaintiff should be compensated by payment of costs. 8. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The order passed by the learned trial Court on 28.07.2017, whereby the evidence of petitioner-defendant No.1 has been closed, is ordered to be set aside. Petitioner-defendant No.1 shall be granted one opportunity by the learned trial Court for leading his entire evidence and in case he requires assistance of the Court, then the same shall not be denied to him. However, this shall be subject to payment of Rs. 15, 000/- as costs which shall be paid to the respondentplaintiff on the date of appearance before the learned trial Court. 9. The parties are directed to appear before the learned trial Court on 21.05.2018 on which date the learned trial Court shall fix a date for recording the evidence of the petitioner-defendant No.1 only after the costs, as aforesaid, are paid to the respondent-plaintiff. In case, the costs are not paid, in that eventuality, the impugned order dated 28.07.2017 shall be deemed to have come into operation. 10. In case, the costs are not paid, in that eventuality, the impugned order dated 28.07.2017 shall be deemed to have come into operation. 10. With these observations, the revision petition is disposed of with costs, as aforesaid, in the aforesaid terms. Pending application, if any, also stands disposed of.