Point of Law: If either of respondent’s witnesses is absent on said date, right to lead evidence of said witnesses shall stand closed.

JUDGMENT :

C. HARI SHANKAR, J.

1. This petition under Article 227 of the Constitution of India assails the order dated 28th September 2021, passed by the learned Senior Civil Judge (“the learned SCJ”) in RC ARC No. 78979/2016 (Surinder Kumar vs. Ram Ditti). The impugned order reads thus:

“RC ARC No. 78979/2016

Surinder Kumar vs. Ram Ditti

28.09.2021

Present: Ld. Counsel for the parties.

Fresh vakalamama filed on behalf of respondent no. 2, 3, 4 and 5.

Matter is listed for final arguments.

An application for recalling of order dated 26.03.2021 has been filed on behalf of respondents.

Arguments heard. Application is perused.

In view of the submissions and reasons mentioned, the application is allowed.

Put up for further RE on 04.10.2021.

Sd/-

(Aditi Garg)

SCJ-cum-RC Central District

28.09.2021.”

2. I may note, at the very outset, that an order such as that impugned in the present petition cannot, legally, be passed. An application seeking recall of an order cannot be allowed without any reasons whatsoever. All that is said in the impugned order is that, in view of the submissions and reasons mentioned in the recall application, the application is allowed and the order dated 26th March 2021 is recalled. On the face of it, this order is perfunctory, and ought not to have been passed in such a fashion.

3. In order to avoid multiplicity of litigation, I have, nonetheless, examined the order dated 26th March 2021 as well as the application seeking recall of the said order. The order dated 26th March 2021 reads thus:

“RC ARC No. 78979/16

Surinder Kumar vs. Ram Ditti

26.03.2021

Present: Ld. Counsel for petitioner.

One Sh. Jitender Kumar has appeared. However, the name of Sh. Jitender Kumar does not figure in the memo of parties.

As per Court record, last and final opportunity was granted to respondent to lead RE.

Previously also RE was closed vide order dated 20.08.2019 and thereafter, same was re-opened vide order dated 03.10.2019. On 10.01.2020, it has been directed that in case respondent does not lead evidence, RE would be closed.

Since, No RW present today and considering the previous conduct of the respondent, RE is hereby closed.

Re-list for final arguments on 10.05.2021.

Sd/-

(Aditi Garg)

SCJ-cum-RC Central District

26.03.2021.”

4. A reading of the aforesaid order dated 26th March 2021 reveals that the learned ASCJ has sought to justify her decision to close the respondent’s evidence (RE) on two considerations. The first is that, on an earlier occasion, RE was closed vide order dated 20th August 2019 and, later, reopened by the order dated 3rd October 2019. The second is that, though, on 10th January 2020 it was specifically directed that in case the respondents did not lead evidence, RE would be closed, the respondent’s witness was absent on 26th March 2021.

5. The first of the aforesaid two reasons may not be sufficient as a ground to close RE. The Supreme Court in State Bank of India vs. Chandra Govindji, (2000) 8 SCC 532, has held that, where repeated adjournments are allowed, the adjournments, once allowed, cannot thereafter be re-examined, as there is a presumption that adjournments were validly granted. Where a party appeals against the grant, or refusal of an adjournment on a particular date, therefore, the Court is required to examine whether the ground for adjournment on that date was justified or not, and cannot be unduly influenced by the number of adjournments granted earlier.

6. Applying the said principle to the present case, the Court would essentially have to examine whether the absence of the respondent’s witness on 26th March 2021 was sufficient ground to close the RE.

7. In the application filed by the respondent seeking recall of the said order, the ground taken was that, on 26th March 2021, the respondent’s witness suffered a cardiac arrest and had to be hospitalized. Thereafter, it is stated, in the application, that the father of learned Counsel for the respondent expired and, later, the learned Counsel himself. Consequent to the their fa