Granting leniency to litigants during the pandemic period and allowing one opportunity to lead evidence.

JUDGMENT :

TUSHAR RAO GEDELA, J.

[The proceeding has been conducted through Hybrid mode]

1. Petitioner challenges the order dated 08.12.2022 in CS DJ 736/17 titled as “Joginder Chadha vs. Vishnu Kumar And Ors.” whereby the application seeking recall of the order dated 06.07.2022 whereby the right of the petitioner/plaintiff was closed, was dismissed.

2. Learned counsel submits that the petitioner had specifically informed the learned Trial Court that on 06.07.2022, the petitioner was unwell and could not appear before the Court nor could the evidence be filed on his behalf.

3. Learned counsel submits that the learned Trial Court did not consider the medical prescription filed on record and had closed the right of the petitioner/plaintiff to lead evidence on the basis that on previous occasions, the petitioner/plaintiff had miserably failed to adhere to the timelines given by the learned Trial Court for filing of the evidence.

4. Learned counsel further submits that, no doubt the issues were framed in the month of November 2019, yet the first date which was fixed for recording of evidence of petitioner was on 28.05.2020, which fell during the period of pandemic and subsequently, right up till 28.02.2022, various waves of pandemic had occurred leaving no opportunity for the petitioner to file his evidence.

5. Learned counsel submits that petitioner had made a fervent request to the learned Trial Court to permit one chance to lead petitioner/plaintiff’s evidence in support of his suit which was not considered.

6. Per contra, Mr. Bhasin, learned counsel appearing for the respondent Nos. 1 to 3 vehemently opposed the submissions made by learned counsel appearing for the petitioner and invited attention of this Court to various previous orders as well as pointed out to the conduct of the petitioner/plaintiff.

7. Mr. Bhasin, learned counsel submitted that there are number of litigations pending between the parties and the petitioner/plaintiff is a chronic litigant and does not deserve any kind of a leniency.

8. Mr. Bhasin, learned counsel submits that on 06.07.2022 when the counsel for the petitioner/plaintiff had appeared, no reason for the absence of the petitioner/plaintiff was at all given by the counsel and the only flimsy reason given was, that the direction for filing the evidence on record was not informed to him by his own client i.e., the petitioner/plaintiff. Mr. Bhasin, learned counsel submits that in that context the learned Trial Court, was constrained to pass the impugned order dated 06.07.2022 closing the right to file the evidence on behalf of the petitioner/plaintiff.

9. Learned counsel submits that it is only subsequently, while seeking recall of the order dated 06.07.2022 that the medical certificate of a Doctor allegedly certifying the illness of the petitioner from 04.07.2022 through till 06.07.2022 was filed on record. Mr. Bhasin submits that even if it is assumed that the illness was genuine, that would still not answer the lapse of not having filed the petitioner’s evidence from 17.02.2022 to 06.07.2022.

10. On the aforesaid submissions, learned counsel for the respondents submits that the petitioner deserves no leniency and the petition should be dismissed with heavy costs.

11. This Court has considered the rival submissions of the parties and perused the documents as also the impugned order.

12. The impugned order dated 06.07.2022, though, was passed on the basis that no explanation was tendered by the petitioner/plaintiff from 17.02.2022 through till 06.07.2022, however, the period prior thereto was also taken into consideration to show the conduct of the petitioner/plaintiff to deny him the entitlement to file his evidence.

13. This Court has noted that the Trial Court has primarily led itself to pass the impugned order on the basis also of the period which was covered by the pandemic period and which broadly fell within the parameters of the judgment passed by the Supreme Court in Suo Moto Writ Petition (C) No. 3/2020