The court considered the subsequent submission of medical evidence and the petitioner's age and financial situation in allowing the reopening of the defendant's evidence.

JUDGMENT

Tushar Rao Gedela, J.

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioner challenges the order dated 21.12.2022 passed in CS DJ No. 78625/2016 titled `Hari Chand & Ors vs. Santosh Chadha & Anr' whereby learned Trial Court has closed the right of the petitioner to get her defendant evidence (DE) recorded, on the basis that a number of adjournments were availed of by the petitioner/defendant and the reason of upset stomach was not backed by any document on record.

2. Learned counsel appearing for the petitioner/defendant submits that the learned Trial Court has erred in not taking into consideration the fact that the witness had in fact filed the medical prescription showing that she was suffering from upset stomach and was advised bed-rest.

3. Learned counsel for the petitioner also submits that the petitioner is a widow aged about 75 years and stated to be surviving on monthly family pension.

4. Learned counsel for the petitioner also submits that the evidence by way of an affidavit of the petitioner/defendant was filed and is already on record of the learned Trial Court, as far back in December, 2019.

5. Per Contra, learned counsel for the respondent/plaintiff submits that as on the date of passing of the impugned order, no medical document was submitted on behalf of the petitioner and it was only subsequently that the medical documents were placed on record before the learned Trial Court and in that view of the matter, learned counsel for the respondent/plaintiff submits that there is no material illegality or irregularity has been committed by the learned Trial court while passing the impugned order.

6. This Court has considered that aforesaid submissions of learned counsel for the parties and keeping in view the fact that the medical prescription dated 28.09.2022 was in fact filed subsequently, was material enough for the learned Trial Court to permit reopening of the petitioner/defendant's evidence.

7. This Court is also of the opinion that keeping in view the age of the petitioner which is stated to be 75 years even as per the affidavit in support of the present petition, along with the fact that petitioner is surviving on monthly family pension, the learned Trial Court ought to have more sensitivity to the factual situation obtaining in the present petition.

8. In view of the aforesaid, the impugned order is set aside and the learned Trial Court is directed to commence recording of the evidence of the petitioner in accordance with law.

9. It is made clear that the petitioner/defendant is given one last opportunity to commence the recording of the evidence, failing which, the learned Trial Court shall not reopen the defendant's evidence (DE) on behalf of the petitioner/defendant.

10. Learned counsel appearing for the petitioner undertakes to file the appropriate application for summoning of the official witnesses well before the next date of hearing before the learned Trial Court.

11. The aforesaid undertaking binds the petitioner.

12. Learned counsel for the respondent/plaintiff submits that he would not be available on 14.02.2023 for the purposes of cross-examination of the petitioner/defendant in view of the marriage function in his family and therefore requests that the learned Trial Court may be directed to take up the matter on any other date, if convenient to it.

13. Learned Trial Court is also requested to consider the said request made by learned counsel for the respondent and fix a short date as convenient to the parties as well as to the learned Trial Court other than 14.02.2023.

14. Any infraction of the aforesaid directions or the undertaking shall entail the liberty granted vide this order redundant and no further indulgence shall be shown to the petitioner/defendant.

15. With the aforesaid directions, the petition stands disposed of with no order as to cost.

16. Pending applications also stand disposed of.