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2022 DIGILAW 1107 (JHR)

Md. Nasim @ Md. Nasim Akhtar v. Khurshid Ansari

2022-09-02

RAJESH SHANKAR

body2022
ORDER : 1. The present civil miscellaneous petition has been filed for quashing the order dated 31.05.2022 passed by the learned Sub-Judge-VI (Civil Judge, Senior Division-VI), Deoghar in Title Suit No.103 of 2011, whereby the petition filed by the defendant nos.1 to 6/petitioners dated 20.05.2022 for recalling the order dated 15.02.2022, whereby the defendants’ evidence was closed, has been dismissed and the case has been posted for argument. 2. Learned counsel for the petitioners submits that the plaintiffs/respondents filed a suit being Title Suit No. 103 of 2011 for the following reliefs:- (i) On adjudication of the suit, plaintiff nos.1 to 4 be declared 4/15th share, plaintiff no.5 be declared 1/20th share and similarly plaintiff no.6 be declared 1/5th share in the suit property by passing a preliminary decree; (ii) Amin Commissioner may be deputed for carving out the share of the parties and to prepare a final decree. (iii) Delivery of possession be made in favour of the plaintiffs as per their allotted shares specifically mentioned in final decree through process of the court; and (iv) Cost of the suit. 3. It is further submitted that the defendants appeared in the said case and filed their written statement. The evidence of the plaintiffs/respondents was closed on 28.11.2016 and, thereafter, the case was fixed for evidence of the defendants. The evidence of Md. Kamruddin Ansari (defendant’s witness) was filed on 05.07.2017, however, for one reason or the other, cross-examination of Md. Kamruddin Ansari could not be done, though on various dates his attendance was filed before the court below and finally the evidence of the defendants was closed on 04.07.2019. The defendants filed an application for recall of the order dated 04.07.2019, which was allowed vide order dated 25.09.2019 with a direction to conclude the evidence within next four dates fixed by the court. It is also submitted that the defendants could not be able to examine their witnesses on the dates fixed by the trial court due to the reason beyond their control, for which they should not be penalized. The impugned order has been passed in haste without properly verifying the order-sheet of Title Suit No.103 of 2011 as well as the explanation submitted by the defendants. It is further submitted that if one opportunity is given to them, the defendants are ready to file examination-in-chief of all the witnesses along with affidavit. The impugned order has been passed in haste without properly verifying the order-sheet of Title Suit No.103 of 2011 as well as the explanation submitted by the defendants. It is further submitted that if one opportunity is given to them, the defendants are ready to file examination-in-chief of all the witnesses along with affidavit. If they are not given an opportunity to lead evidence on their behalf, the same would cause irreparable loss and injury to them. 4. Learned counsel for the plaintiffs/respondents submits that the defendants have been deliberately delaying the disposal of the suit and as such the trial court has rightly closed their evidence and fixed the case for argument. It is further submitted that the defendants were given enough opportunity to lead their evidence, however, they failed to examine the witnesses on their behalf. In spite of specific direction of the trial court to examine their witnesses within next four dates fixed by the Court, the defendants failed to examine even a single witness during that period, which shows their negligent delaying attitude. 5. Heard the learned counsel for the parties and perused the impugned order dated 25.09.2019. It appears that the trial court, while allowing the recall petition of the petitioners dated 17.07.2019, directed them to conclude their evidence within next four dates. On the first date fixed by the trial court i.e. on 19.11.2019, the defendant nos.1 to 6 filed a petition for grant of time which was allowed and the case was fixed for defendants’ evidence on 03.01.2020 and on the said date the attendance of defendants’ witness, namely, Kamruddin Ansari was filed but due to condolence resolution of the lawyers, he could not be examined. Again on 18.02.2020, the defendants’ witness could not be examined because the lawyers were abstaining from the court work. Thereafter, the case was directed to be placed on 15.04.2020. However, the same could not be placed on the said date due to Covid-19 pandemic and the case record was placed on 29th September, 2021 and the defendants were directed to produce witness on 23.12.2021. On the said date, the Presiding Officer was on casual leave and as such the case was fixed for 03.02.2022. The defendants were, however, absent on 03.02.2022 and as such the case was fixed on 15.02.2022, giving last chance to the defendants for leading their evidence. On the said date, the Presiding Officer was on casual leave and as such the case was fixed for 03.02.2022. The defendants were, however, absent on 03.02.2022 and as such the case was fixed on 15.02.2022, giving last chance to the defendants for leading their evidence. On 15.02.2022, both the parties were absent and the trial court closed the evidence of the defendants and fixed the case for argument on 18.02.2022, observing that the defendants were allowed only four dates to produce witnesses vide order dated 25.09.2019, however, seven dates were already given and they neither produced any evidence nor filed petition for grant of time. 6. From the aforesaid facts, it appears that out of four dates given to the defendants for producing evidence, on three dates the matter was adjourned for the reason beyond control of the defendants and only on 19.11.2019, the case was adjourned on time petition filed on behalf of the defendant nos.1 to 6. That apart, on 23.12.2021, the Presiding Officer was on casual leave and on the said date, the case was fixed for 03.02.2022 by the I/c. Civil Judge (Sr. Division)-I, Deoghar. The defendants were absent on 03.02.2022 and as such they were given last chance to lead their evidence on 15.02.2022. However, on 15.02.2022 both the plaintiffs and the defendants were absent. 7. Thus, this court is of the view that the defendant nos.1 to 6/petitioners have sufficiently explained the reason for not producing evidence within next four dates, as mentioned in the order dated 25.09.2019 passed by the trial court. The defendant nos.1 to 6/petitioners have prayed for one more opportunity from this court to file examination-in-chief of all their witnesses on oath. In the ends of justice, this court feels it proper to allow the prayer of the said defendants on payment of cost to the plaintiffs for the inconvenience caused to them. 8. In view of the aforesaid discussions, the trial court is directed to allow two dates to the said defendants to file examination-in-chief of all their witnesses subject to payment of cost of Rs.12,000/- in favour of the plaintiffs, who are also directed to conclude cross-examination of the defendants’ witnesses in next two dates. 9. Since the suit is of the year 2011, the trial court shall give the shortest possible dates for examination-in-chief and cross-examination of the defendants’ witnesses. 10. 9. Since the suit is of the year 2011, the trial court shall give the shortest possible dates for examination-in-chief and cross-examination of the defendants’ witnesses. 10. This civil miscellaneous petition is, accordingly, allowed with the aforesaid observations and directions.