Sahil v. Vijay Kumar & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kartik Gupta, Advocate for the petitioner. * * * L. N. MITTAL, J. (Oral) : C. M. No. 21979-C of 2012 : Application is allowed and Annexure P-7 (Colly.) is taken on record, subject to all just exceptions. Main Case : By this revision petition filed under Article 227 of the Constitution of India, defendant no.1 Sahil has impugned order dated

09.08.2012 (Annexure P-6), passed by learned Civil Judge (Junior Division), Karnal, thereby closing evidence of defendant no.1 by court order. C. R. No.4841 of 2012 (O&M) 2 I have heard counsel for the petitioner and perused the case file. Counsel for the petitioner prayed that only one more opportunity may be granted to the petitioner for his remaining evidence at own responsibility. I have carefully considered the aforesaid prayer. On the preceding date of hearing, counsel for the petitioner stated that only four opportunities were granted to defendant no.1- petitioner for his evidence. However, perusal of zimni orders of the trial court, as placed on record, reveals that in all, eight effective opportunities were granted to the petitioner-defendant no.1 for his evidence. According to Order 17 Rule 1 of the Code of Civil Procedure, only three opportunities are required to be granted to a party for its evidence. However, the said provision, being rule of procedure, may be followed with some flexibility and not with extreme rigidity. The suit in question was, during the stage of evidence of defendant no.1, transferred from one Court to another. On one date of hearing, defendant no.1 appeared in the witness-box and tendered his affidavit of examination-in-chief, but his cross-examination was deferred on request of counsel for the plaintiff. Keeping in view all the circumstances of the case, I am of the considered opinion that ends of justice would be met if another opportunity is granted to the defendant no.1-petitioner for his remaining evidence at C. R. No.4841 of 2012 (O&M) 3 own responsibility, on payment of costs. I intend to dispose of the instant revision petition without issuing notice to plaintiff-respondent no.1 so as to avoid further delay in disposal of the suit and also to save the respondent no.1-plaintiff of the expenses he may have to bear in engaging counsel for the revision petition, if notice of the same is issued to him. Accordingly, the instant revision petition is allowed. Trial court is directed to grant only one more effective opportunity to the defendant no.1-petitioner for his remaining evidence at own responsibility, subject to payment of Rs.7,500/- as costs precedent. September 04, 2012 monika ( L. N. MITTAL ) JUDGE