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2020 DIGILAW 774 (HP)

Chura Mani v. Harinder Singh

2020-10-28

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - Present petition has been filed against the order dated 06.03.2020, passed by learned Civil Judge, Court No.4, Shimla, H.P., whereby right of the petitioner-defendant, to lead evidence, has been closed by the order of the Court. 2. No reply is intended to be filed on behalf of the respondent, rather it is submitted that the petition can be adjudicated and decided on the basis of material available on record. 3. Perusal of record placed before me indicates that on 25.10.2019, evidence of plaintiff was closed and the case was fixed for recording the evidence of defendant on 28.11.2019 and the defendant was directed to take steps for the said purpose within seven days. 4. On 28.11.2019, no defence witnesses were present and steps were also not taken on the part of defendant. On request of defendant, the case was adjourned for 24.12.2019 for recording the evidence of defendant. 5. Order dated 24.12.2019 has not been placed on record. Learned counsel for the petitioner submits, which is not disputed, that on 24.12.2019, for absence of learned Presiding Officer, cases were not taken and the present case was taken on 06.11.2020 for proper orders, as is evident from the copy of order dated 06.01.2020, placed on record. On 06.01.2020 case was adjourned for 04.03.2010, for recording the evidence of defendant with rider that it was listed opportunity. 6. On 04.03.2020, no witness of defendant was present in the Court and time was prayed on behalf of the defendant, which was allowed as last and final opportunity and case was ordered to be listed on 06.03.2020 for recording evidence of defendant with the rider that no further date would be given for the said purpose. 7. On 06.03.2020 again, no witness was present and in view of order passed on previous date, the right of defendant to lead the evidence was closed by order of the Court. 8. 7. On 06.03.2020 again, no witness was present and in view of order passed on previous date, the right of defendant to lead the evidence was closed by order of the Court. 8. It is case of the petitioner that she is 86 years old lady and is residing in village Lohrigar in Tehsil Kumarsain and for coming to Shimla, she has to cross the Narkanda Pass and on 04.03.2020, there was heavy snow fall and on the said date road was closed and because of old age she was unable to come to Shimla to attend the Court to produce the witnesses, which were and are to be produced by her on self responsibility. It is further case of the petitioner that practically only two effective opportunities have been granted to the petitioner i.e., one on 25.10.2019, when the case was listed for recording of the evidence of defendant on 28.11.2019 and secondly, on 06.01.2020, when the case was listed for recording the evidence of defendant on 04.03.2020 and further that at the time of second opportunity, defendant and her witnesses could not be present in the Court for no fault on their part but for bad whether condition as stated supra. 9. It is further submitted that purported third opportunity granted to the petitioner was in fact no opportunity as only two days time was granted whereas the reasons, for which petitioner and her witnesses could not be present on 04.03.2020, were still existing on that day also. 10. Learned counsel for the respondents submits that the respondent, who is more than 60 year old, has filed suit for recovery of rent for which the respondent is entitled for possession of defendant of premises of respondent as a tenant for the last three years and respondent is contesting the suit since 2017 whereas defendant has adopted delaying tactics in order to defeat the claim of the plaintiff. She further submits that sufficient time was granted to the petitioner since 25.10.2019, to lead the evidence and, therefore, she is not entitled for any further opportunity. In alternative it is submitted that in any case if, by taking sympathetic view, the Court purposes to grant further time to the petitioner to lead evidence then only one opportunity be granted to the petitioner that too subject to payment of some costs. 11. In alternative it is submitted that in any case if, by taking sympathetic view, the Court purposes to grant further time to the petitioner to lead evidence then only one opportunity be granted to the petitioner that too subject to payment of some costs. 11. In view of the material placed before me, I find force in the arguments put forth on behalf of the petitioner that the third opportunity, granted to the defendant to lead evidence, in fact was no opportunity at all for want of reasonable time between two dates particularly keeping in view weather conditions and more particularly when for the second time, in December 2019, witnesses could not be examined for non availability of the Presiding Officer. There may be cases where the parties may be at fault by taking unnecessary adjournments and in such eventuality even a one day time may be reasonable opportunity to such party to lead evidence but not in the given facts and circumstances of the present case. 12. Considering the entire facts and circumstances of the case, one more opportunity, as prayed, on behalf of the defendant/petitioner to lead her evidence on herself responsibility, is granted to her but subject to payment of costs of Rs.3,000/- payable to the respondent/plaintiff on or before the date fixed for recording evidence of the defendant before learned Civil Judge, Court No.4, Shimla. Petitioner is directed to produce herself and her witnesses before the learned trial Court on 23.11.2020, for their examination and cross examination. No further opportunity shall be granted to the petitioner to lead evidence on her part. In case for any reason, not attributable to the defendant/ petitioner, evidence is not recorded on that day, then another subsequent date shall be fixed by the Court to record evidence of the defendant but not later than 15.12.2020. No further opportunity shall be granted for leading the evidence of defendant. 13. Petition is disposed of in the aforesaid terms. Parties are directed to appear before the learned trial Court either in person or through their counsel on 09.11.2020.