Vishwakant Singh & Anr. v. Sunita Mittal

1. The present petition filed under Article 227 of the Constitution impugnstheorder dated 07.05.2022 passed by the Civil Judge (Shahdara) Karkardooma Courts, titled as Sunita Mittalvs. VishwakantSingh & Anr in civil suit bearingno. 7868/2016 (‘Trial Court’) whereby the Trial Court closed the evidence of the Petitioner No. 1 in view of the fact that neitherthe witness DW-1 i.e., Sh. VishwakantSingh nor the counsel for PetitionerNo.1 was present.

1.1. The Petitioner No. 1 is the original defendant No. 2 and the Respondentis the original plaintiff in the civil suit. The civil suit has been filed for recovery of loan amount of Rs. 1,49,000/- along with interest.

2. The Petitioner No. 1 filed an application on 21.07.2022 for seeking recall of the order dated 07.05.2022. The said application has been dismissed by theTrialCourt videorder dated 04.01.2023on theground that since the finalargumentsin the matterstandconcluded,thesaid application seeking for recall of the order dated 07.05.2022 is not maintainable.

3. Learned counselfor theRespondent hasentered appearance. Hestates that withoutprejudice to the rights and contentions, he has no objection if theorder dated 07.05.2022 is set asidesubject to strict terms and conditions being imposed on the Petitioner No. 1.

4. In response, learned counsel for the Petitioner No. 1 states that he proposes to only examine defendant no. 2 himself i.e., Sh. Vishwakant Singh as the sole witness.

4.1. He states that the Petitioner No. 1 undertakes that Sh. Vishwakant Singh shallremain duly present beforetheTrialCourt on 28.11.2023 for his further cross examination and on each subsequent date until his cross examination is closed and discharge.

4.2. He further states that he is willing to pay reasonable cost to the Respondent herein.

4.3. He further states that Petitioner No. 1 undertakes not to seek any adjournmentbeforetheTrialCourt and cooperatewith theTrial Courtin the expeditious disposal of the trial.

5. This Court has considered the submissions of the counsel for the parties and perused the record.

5.1. The TrialCourt on 04.01.2023dismissed theapplication of Petitioner No.1 seeking recall of the order 07.05.2022 on the ground that final arguments have been concluded.

5.2. It is, however, now come on record that the final judgement has not been pronounced by the Trial Court till date and in fact, the matter is now posted for further proceedings on 28.11.2023.In fact, in theinterregnum, the Respondentherein had filed an applicationunderOrder VII Rule 14 Codeof Civil Procedure, 1908 (‘CPC’) for placing on record the additional documents, which was allowed vide order dated 24.02.2023.

5.3. Therefore, the reasons which formed the basis of the Trial Court’s order dated 04.01.2023 have now ceased to exist.

6. In view of the subsequent facts andwith theconsent oftheparties,the order dated 07.05.2022and theconsequentialorder dated 04.01.2023 to the extent that it dismisses the application of the Petitioner No. 1 is set aside.

7. The aforesaid opportunity is being granted to the Petitioner No. 1 subject to payment of cost of Rs. 5,000/- within two (2) weeks to the Respondent.

8. The undertakingofthePetitioner No. 1 as recorded in paragraph nos. 4, 4.[1] to 4.[3] above is taken on record and he is bound down to the same.