Full Judgment
W.P.No.15298 o”
21. 09.12 Shri Nitin Agarwal, counsel for the petitioneRs.He is heard on the question of admission.
Petitioners/defendants have filed this petition under Article 227 of the Constitution of India for quashment of order dated 1.9.12 (Annx.P/1 passed by the Civil Judge Class-I whereby closing their right to adduce the evidence, the case has been posted for final arguments and as per submission of the counsel, the same is fixed today before the trial court for such arguments.
After taking me through the petition as well as the papers placed on the record along with the impugned order sheet of the trial court, he argued that the impugned suit has been filed by respondent No.1 and 2 against the petitioners for declaration, partition and separate possession of the disputed undivided joint Hindu family property and, in the available circumstances, if the opportunity to adduce the supporting evidence is not extended to the petitioners then not only the petitioners but his next generation has to suffer in a lot.
He fairly conceded that for one reason or another, petitioners could not keep present their witnesses before the trial court even on posting the case 4-5 times in that regard.
In continuation, he said that the petitioners want to produce petitioner No.2 for his further cross-examination and besides him also want to examine one witness Govind petitioner No.4 and prayed for extending such opportunity with appropriate direction by admitting and allowing this petition.
Keeping in view the aforesaid arguments, I have carefully gone through the petition, annexed papers and the order impugned Annex.P/1.
In the lack of any material document or the medical certificate in support of the application of adjournment filed by the petitioner on 1.9.12, the trial court has not committed any error in passing the impugned order.
So, in such situation, such order does not require any interference.
However, in the available circumstances of the case, in the interest of justice one more opportunity is extended to the petitioners to file the appropriate application along with the affidavit and requisite material document explaining the circumstances in which above mentioned witnesses could not come to enter in the witness box on 1.9.12 within five working days with a further direction that such application be filed before the trial court by keeping the above mentioned witnesses present.
Pursuant to it, the trial court is directed that by keeping present the aforesaid witnesses the petitioner No.2 and 4 if the above mentioned application is filed on behalf of the petitioners within 5 working days then the same be considered and decided on its own merits, after extending the opportunity of hearing on it to the respondents/ plaintiffs, with justice oriented approach, also keeping in view that the parties shall not be deprived from adducing evidence mere on the procedural or technical ground in the trial court.
The trial court on such consideration shall be at liberty to impose the cost on petitioners under its discretion to compensate the respondents/plaintiffs.
It is made clear that in allowing the aforesaid application, the aforesaid present witnesses shall be examined on the same day or day subsequent but no adjournment shall be given to the petitioneRs.However, the respondents/plaintiffs are also extended the liberty to approach this court with appropriate application/ proceedings if they are aggrieved by this order or any part of it.
Petition is disposed of with aforesaid observation, liberty and direction.
C.C as per rules.
(U.C.Maheshwari) Judge MKL