The central legal point established in the judgment is the importance of granting reasonable opportunities to the defendant to lead evidence and the need for judicial orders to fix actual dates for recording evidence.

JUDGMENT

Ajay Mohan Goel, J. - By way of this petition, filed under Section 227 of the Constitution of India, the petitioner/defendant No.2 has assailed order dated 06.04.2021, vide which the Court of learned Civil Judge, Bilaspur, H.P., has closed the evidence of defendant No.2, on the ground that said defendant had failed to lead evidence despite reasonable opportunities having been granted.

2. I have heard learned counsel for the parties and have gone through the documents appended with the petition as well as the Zimni Orders, including the impugned order. Perusal thereof demonstrates that after the evidence of the plaintiff-bank was recorded, on 09.07.2019, the case was ordered to be listed for evidence of defendant No.2 (DWs), i.e. the present petitioner, on 21.10.2019. However, on the said date, no witness (DW) was present and accordingly, on the request of defendant No.2, the case was ordered to be listed for examination of DWs on 17.12.2019, on steps being taken within seven days in this regard.

3. Record demonstrates that on 17.12.2019 also, defendant No.2 failed to lead any evidence and as a matter of indulgence, learned Court below posted the case for 26.02.2020, for evidence of defendant No.2. The story was repeated on 26.02.2020 also and the matter was ordered to be listed on 04.05.2020, for recording evidence of defendant No.2 "subject to 3rd and last opportunity". However, the matter was not listed before the Court on, 04.05.2020, due to Covid-19 Pandemic and the same was listed on 30.06.2020, on which date the following order stands recorded:-

4. It appears that, thereafter, on 18.08.2020 also, the case could not be listed before the learned Court below as the Courts were not fully functional due to Covid-19 Pandemic. The matter was listed on 25.02.2021, on which date, learned counsel for the represented parties appeared before the Court and the case was ordered to be listed on 03.04.2021, for recording statements of defendant's witnesses (DWs). The Court did not assemble on 03.04.2021 and it was on 06.04.2021 that the Court assembled, on which date the impugned order was passed, which reads as under:-

"Perusal of the files shows that case has been taken up today for effective hearing, vide separate office order. On the previous date of hearing, i.e. on 25.02.2021, it was clarified that in the interest of justice, one last opportunity, i.e. fourth opportunity was given to the defendants to lead evidence, however, neither steps have been taken, nor the evidence has been procured, as such, it deems fit to this Court to close the evidence on behalf of defendants and list the case for arguments on 29.04.2021".

5. In the considered view of the Court, as on 25.02.2021, the case was ordered to be listed for recording evidence of DWs for 03.04.2021 and the matter was not listed before the Court on the said date, i.e. 03.04.2021, then in these circumstances, learned Court below could not have had closed the evidence of the present petitioner/ defendant No.2, in the manner in which it has been done vide impugned order dated 06.04.2021. Even if, it is to be assumed that on 03.04.2021, the parties were put to notice may be by way of a General Notice that the matters listed on the said date shall be listed on 06.04.2021, then also, ipso facto, it could not have been taken for granted that defendant No.2 was to bring his witnesses for examination on the said date in the absence of a judicial order. There is no doubt that reasonable opportunities were given by the learned Court below to defendant No.2 to lead his evidence before 03.04.2021, but in the peculiar circumstances, keeping in view the fact that the date on which the case was actually ordered to be listed by the learned Court below for recording the evidence, the Court did not