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HIGH COURT OF DELHI
CM(M) 341/2020
AMIT KUMAR & ORS ..... Petitioners
Through: Mr. Subhash Kamboj, Adv.
Through:
JUDGMENT
02.09.2022
1. The petitioners, in this petition under Article 227 of the Constitution of India, are aggrieved by the closure, by the learned Civil Judge, of the petitioners’ right to lead their evidence (PE) vide order dated 16th July 2019, which reads as under: “16.07.2019 Present:-None for plaintiff. None for defendant. Matter is fixed for PE. Witness of the plaintiff is not present. Even on the last date of hearing witness of plaintiff was not present. Accordingly right to lead PE is closed by court order. Now to come up for DE on 18.10.2019.”
2. On a chronological scanning of the orders passed prior to 16th 2022:DHC:3782 July 2019, the position that emerges is that
(i) the matter was first posted for recording of PE on 22nd September 2017, on which date the list of witnesses was furnished by the petitioners and affidavit in evidence of petitioner as PW-1 was also tendered but the respondentdefendant sought time, for which reason the matter was adjourned to 10th October 2017,
(ii) on 10th October 2017, the learned Civil Judge was on leave,
(iii) the respondent appealed, against the interlocutory order passed by the learned Civil Judge in favour of the petitioners under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) and the record of the learned Trial Court was requisitioned by the Court hearing the said appeal,
(iv) accordingly, on the next date, i.e 21st December 2017, as the file was not before the Court, the matter was adjourned to 1st March 2018,
(v) on 1st March 2018, the learned Civil Judge was on leave and the matter was renotified for 17th April 2018,
(vi) on 17th April 2018, the file had yet not been received back from the learned Appellate Court, and the matter was renotified for 22nd May 2018,
(vii) on 22nd May 2018, the learned Civil Judge was on leave,
(viii) on 8th August 2018, the file had yet not been received back from the learned Appellate Court and the matter was renotified for 26th October 2018,
(ix) as the file had yet not been received back from the learned First Appellate Court, the matter was again adjourned, on 26th October 2018, for 24th December 2018,
(x) on 24th December 2018, the learned Civil Judge was on leave and the matter was renotified for 14th March 2019,
(xi) on 14th March 2019, though it was noted that the file had been received but neither PW was present and that, though learned Counsel for the plaintiff was present, who sought adjournment, learned Counsel for the defendant was absen; accordingly, the matter was renotified for 16th July 2019 and
(xii) on 16th July 2019, PW-1 was not present and PE was closed.
3. Of all the above dates, therefore, it is clear that the evidence of PW-1 could have been recorded only on 22nd September 2017, 14th March 2019 and 16th July 2019. Of these three dates, the respondent sought adjournment on 22nd September 2017. Till 24th December 2018, the file of the case had not been received back from the learned Appellate Court, which had called for the file while dealing with the appeal preferred by the respondent. No doubt, PW-1 was absent on the said date; at the same time, Counsel for the defendant was also not present. PE was closed on the very next date of hearing, i.e. 16th July
2019.
4. The petitioners have averred, in the present petition, that, on 16th July 2019, the clerk of the petitioners’ Counsel had sought an accommodation for ten days, which was not granted and that, when the Counsel reached the Court a short while thereafter, the order dated 16th July 2019 had already been passed. Without entering into the correctness of that assertion — as it can hardly be verified by this Court — it appears, prima facie, that the interests of justice and fair play would grant extension, to the petitioners, of one more opportunity to lead evidence on behalf of the petitioners as plaintiffs.
5. Consequent to passing of the order dated 16th July 2019, the petitioner moved an application for recall of the said order, which was taken up and dismissed by the learned Civil Judge on 28th January
2020. Inasmuch as I am of the opinion that the petitioners were entitled to be extended one further opportunity to lead PE, the order dated 28th January 2020 is also liable to be set aside.
6. As such, the order dated 16th July 2019, whereby the learned Civil Judge has closed PE and the order dated 28th January 2020, whereby the application filed by the petitioners for recall of the said order dated 16th July 2019 has been dismissed, are quashed and set aside. The petitioners are directed to ensure that their witness is present on the next date of hearing before the learned Civil Judge, who would proceed with the recording of PE on the said date. No adjournment would be granted to the petitioners on the next date of hearing, and in the event that their witness is not present, the impugned order shall stand revived.
7. This petition is allowed to the aforesaid extent with no order as to costs.
C. HARI SHANKAR, J