Smt.Daya Kaur v. Smt.Parmila

Smt. Parmila .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.S.P.Chahar, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) Tersenessly, the facts, culminating in the commencement, relevant for disposal of the present revision petition and emanating from the record, are that Daya Kaur widow of Ran Singh-petitioner-plaintiff(for brevity “the plaintiff”) filed the suit(Annexure P-1) against Parmila daughter of Om Parkash-respondent- defendant(for short “the defendant”) for a decree of declaration and permanent injunction. The defendant contested the suit and filed the written statement (Annexure P-2) and prayed for dismissal of the suit.

Having framed the essential issues for proper adjudication, in the wake of pleadings of the parties, the case was slated for evidence of the plaintiff.

The plaintiff sought many opportunities to lead the evidence, ultimately, the case was adjourned and the trial Court closed her evidence, by means of impugned order dated 28.05.2011.

Aggrieved by the impugned decision of the trial Court, the petitioner- plaintiff 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 Civil Revision No.5031 of 2011 2 Constitution of India, I hereby exempt the issuance of notice to the respondent- defendant, in 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.

Having heard the learned counsel for the petitioner, having gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be partly accepted in this respect.

As is evident from the record that, the main ground which appears to have been weighed with the trial Court to close the evidence of the plaintiff was that, many opportunities including the last opportunity and subject to the costs, were granted to her, but she failed to conclude the evidence.

Ex facie, it may be true, but it is apparent from the record that plaintiff-Daya Kaur, who is an old widow, fell ill and was unable to appear in the Court on account of her illness. The medical certificate on her behalf was also produced, but still, her evidence was closed by the trial Court.

Therefore, taking into consideration the nature of litigation and illness of the plaintiff, who is widow, the trial Court ought to have granted one more opportunity, to conclude her evidence in this regard, subject to costs. The production of evidence is essential, to decide the real controversy between the parties and is the legal requirement of fair trial. Therefore, the trial Court has committed the material, procedural irregularity & illegality and the impugned order cannot be maintained in the obtaining circumstances of the case. To me, if the opportunity is not granted to the plaintiff, then it will inculcate and perpetuate injustice to her case. Moreover, no prejudice is going to be caused to the respondent-defendant, particularly when, she can be compensated with adequate costs in this relevant connection. More so, when the case is still fixed for evidence of the defendant. Civil Revision No.5031 of 2011 3

In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order is hereby set aside. The trial Court is directed to provide one more opportunity to the plaintiff, to conclude her evidence. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the petitioner-plaintiff to the respondent- defendant. Needless to mention that, the trial Court would ensure the payment of costs personally to the defendant. The payment of costs would be a condition precedent to the further prosecution of the case. The Registry is directed to send a copy of this order to the trial Court forthwith, for strict compliance. August 19, 2011 (MEHINDER SINGH SULLAR) JUDGE Civil Revision No.5031 of 2011 4 C.M.No.20017-CII of 2011 in Civil Revision No.5031 of 2011 Present: Mr.S.P.Chahar, Advocate, for the petitioner. **** Application is allowed as prayed for. August 19, 2011 (MEHINDER SINGH SULLAR) JUDGE