Prem Chand alias Tindu v. Smt.Sunita Hasija & Anr.

Smt. Sunita Hasija and another .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Sudhir Aggarwal, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The crux of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record is that, Smt. Sunita Hasija wife of Sunder Dass Hasija-respondent No.1-plaintiff(for brevity “the plaintiff”) filed the suit against Prem Chand alias Tindu son of Hem Raj-petitioner-defendant No.1 and Hem Raj Hasija-respondent No.2-defendant No.2(for short “the defendants”) for a decree of mandatory injunction. Since, defendant No.2 did not appear, despite service, so ex-parte proceedings were ordered against him. However, defendant No.1 contested the suit.

As, defendant No.1 did not conclude, therefore, the trial Court closed his evidence, by virtue of impugned order dated 30.05.2011(Annexure P-1).

Aggrieved by the impugned decision(Annexure P-1) of the trial Court, the petitioner-defendant No.1 preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.

At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the plaintiff, in Civil Revision No.4495 of 2011 2 order to save her from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the suit, particularly when she can well be compensated with adequate costs in this context. Be that as it may, but still she would be at liberty to file the petition to review this order, without accepting the costs, if so desires.

After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, the instant petition deserves to be partly accepted in this regard.

As is clear from the impugned order(Annexure P-1) that, the main ground which appears to have been weighed with the trial Court to close the evidence was that, defendant No.1 did not conclude his evidence, despite last opportunity and no reasonable explanation has been given in this relevant connection.

Ex facie, it may be true, but taking into consideration the nature of litigation, the trial Court ought to have granted one more opportunity to defendant No.1, to conclude his evidence, subject to the payment of costs. The production of evidence is essential, to decide the real controversy between the parties and is the legal requirement of fair trial. To me, if the opportunity to conclude the evidence is not granted, then it will inculcate and perpetuate injustice to the case of defendant No.1. Moreover, no prejudice is going to be caused to the plaintiff, particularly when, she can be compensated with adequate costs in this respect.

In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order dated 30.05.2011(Annexure P-1) is hereby set aside, in regard to the close of evidence of defendant No.1. The trial Court is directed to provide one more opportunity to defendant No.1, to conclude his evidence. However, this would be subject to the payment of `5,000/- (Rupees Five Thousand) as costs, to be paid by petitioner-defendant No.1 to the plaintiff Civil Revision No.4495 of 2011 3 and the trial Court would ensure the payment of costs personally to the plaintiff. The payment of costs would be a condition precedent to the further defence of the case. Needless to mention that, the trial Court would decide the application for amendment of the written statement already filed by the petitioner independently. September 27, 2011 (MEHINDER SINGH SULLAR) JUDGE