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2025 DIGILAW 1975 (JHR)

Md. Naimul Haque, son of Late Enasul Haque v. Md. Rashid Alam, son of Late Ainul Haque

2025-10-07

GAUTAM KUMAR CHOUDHARY

body2025
Order : Gautam Kumar Choudhary, J. Petitioner is the defendant and is aggrieved by order dated 28.06.2024 passed in Original Title Suit No.52/2010 whereby and whereunder, the defence evidence was closed and vide orders dated 23.09.2024 and 18.02.2025 whereby and whereunder the petition for recall of the order closing defence evidence has also been rejected. 2. The original eviction suit was filed on 15.12.2010 in which this petitioner/defendant no.1 had appeared and filed his written statement and issues were framed on 11.05.2012. The evidence of the plaintiff was closed on 27.04.2016 and the case for evidence of the defendant remained pending till 28.06.2024 then the defence evidence was closed. Learned trial court while rejecting the recall petition, has noted that the petitioner had personally appeared on several dates when the case was already posted for argument. The petition for recall has been filed after lapse of 15 years since the filing of the suit. 3. It is submitted by the learned counsel on behalf of the petitioner that only two adjournments are required for bringing on record the entire evidence, failing which the defence will be prejudiced and rendered defenseless. It is submitted that the case was not at the stage of evidence from 2017–2021, because it was posted for substitution of legal heirs of defendant no.2 and thereafter, appearance and filing of written statement on their behalf. On the date of the impugned order, the defendant was suffering from Heat Stroke and therefore, the evidence could not be adduced on his behalf. 4. It is submitted by the learned counsel on behalf of the plaintiffs/opposite parties that more than ten years were granted for defence evidence. Further, a composite joint written statement was filed by defendant nos.1 and 2 and they were litigating under the same interest while resisting the eviction from the suit premises. Therefore, the plea of written statement not being filed by substituted heirs of defendant no.2, is false and frivolous. 5. Having considered the submissions advanced on behalf of both sides, the matter for consideration is whether there exists sufficient ground for interfering in the impugned order while exercising power under Article 227 of the Constitution of India. Law is settled that the scope of interference under Article 227 of the Constitution of India is limited one and the court does not sit in appeal over the impugned order. Law is settled that the scope of interference under Article 227 of the Constitution of India is limited one and the court does not sit in appeal over the impugned order. The supervisory jurisdiction can be exercised only to see whether an inferior court or tribunal has proceeded within the parameter of its jurisdiction. For the ends of substantial justice, extraordinary power under writ jurisdiction is ordinarily exercised under Article 227 of the Constitution of India. 6. In the case at hand, more than ten years have elapsed in which the defendant failed to adduce a single witness. Learned trial court while rejecting the order of recall has assigned sufficient reasons for refusing to recall the order. The defendant waited till the stage of argument and then pressed application for its evidence. I do not find this an appropriate case for showing indulgence to the petitioner for interfering with the impugned order so as to grant further adjournment for defence evidence. It has been held in Indian Council for Enviro-Legal Action v. Union of India , (2011) 8 SCC 161 that, “It is settled principle of law that no one can take advantage of his own wrong. Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non-compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them.” Civil Miscellaneous Petition accordingly, stands dismissed. Pending Interlocutory Application, if any, is disposed of.