Judgment:
CR No.4010 of 2014 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4010 of 2014 Date of Decision: 30.06.2014 Raju ....Petitioner Versus Rajesh ....Respondent CORAM:- HON'BLE Mr.JUSTICE RAJIV NARAIN RAINA Present: Mr.Dalip Kumar Tuteja, Advocate, for the petitioner.
1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
RAJIV NARAIN RAINA, J.(Oral) The petitioner is the defendant in the suit.
His evidence has been closed by order.
It is revealed in the order dated October 9, 2013 passed by the learned Civil Judge (Senior Division).Rohtak that the plaintiff availed five effective opportunities including last opportunity for concluding his evidence but had failed to do so.
In the circumstances, the plaintiff's evidence was closed by Court order on October 9, 2013 but not without statements of some witnesses recorded and the matter was set down for defendant's evidence on October 29, 2013.
On October 29, 2013 no defence witness was present.
The case was adjourned for November 6, 2013 when one witness was present and examined.
A date was requested.
The matter was posted for November 20, 2013.
No witness was present on November 20, 2013.
On December 5, 2013 the Court was on casual leave when the case was adjourned to December 17, 2013 for the purpose already fixed.
The learned counsel for the petitioner states at the Bar that his client's counsel was not available on December 17, 2013 and therefore he had to engage another counsel.
On strength of the fresh Vakalatnama learned Mittal Manju 2014.07.02 11:19 I attest to the accuracy and integrity of this document Chandigarh CR No.4010 of 2014 -2- counsel had requested adjournment for concluding defendant's evidence which was stoutly opposed by the learned counsel for the plaintiff.
This opposition was made by the plaintiff after having taken many opportunities including last opportunities to conclude his evidence.
The learned Civil Judge (Senior Division).Rohtak by the impugned order dated December 17, 2013 has closed the evidence of the defendant reasoning that three effective opportunities were given for the purpose which were not availed.
The suit is one for specific performance of a contract and agreement to sell property.
In balancing out the conduct of the plaintiff and matching it with that of the defendant and by looking to the totality of the circumstances presented by the order sheet and the injury that may result to the defendant, the impugned order is set aside by allowing this petition.
The learned trial court could have exercised its authority to compel production by resort to imposition of costs and last opportunity option.
This was not done for the defendant-petitioner while it was done for the plaintiff.
Thus, the petitioner/defendant be given effective opportunity to lead his remaining evidence within a time bound period and preferably within two months from the date of receipt of certified copy of this order.
In case a witness is required to be summoned through Court process then necessary allowance may be made for enforcing the production of any such witness.
The learned trial court would pass a fresh order in the light of this order and it would be open to the learned trial court to impose costs as may be found appropriate.
(RAJIV NARAIN RAINA) JUDGE3006.2014 manju Mittal Manju 2014.07.02 11:19 I attest to the accuracy and integrity of this document Chandigarh