The main legal point established is that parties must take necessary steps to lead evidence when granted ample opportunities by the court, and failure to do so may result in the dismissal of their application.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition, the petitioner has challenged order dated 03.04.2019 passed in Civil Suit No. 72 of 2013, titled as Ajay Kumar and others Vs. Arun Jain and others, vide which, an application filed under Order 26, Rule 9 of the Code Civil Procedure for appointment of a Local Commissioner has been dismissed by the learned Court below as well as order dated 08.05.2019, passed by the same Court vide which, the evidence of plaintiffs was closed on the ground that as despite sufficient opportunities neither any plaintiffs’ witness was present nor steps were taken in this regard, therefore, no further indulgence could be shown.

2. As there are two orders of the learned Trial Court assailed by way of this petition filed under Article 227 of the Constitution of India, I will deal with both of them independently.

3. Firstly, I will deal with the order passed by the learned Trial Court vide which it has closed the right of the plaintiffs to lead evidence.

4. Learned counsel for the petitioners has argued that the order vide which right of the plaintiffs to lead evidence has been closed by the learned Trial Court is not sustainable in the eyes of law, as the learned Trial Court has erred in not appreciating that as after dismissal of their application filed under Order 26, Rule 9 of the Code of Civil Procedure, only two opportunities were granted to the plaintiffs to lead evidence and therefore, it could not be said that the plaintiffs had failed to lead evidence despite sufficient opportunities having been granted, because normally at least three opportunities are granted to a party to lead evidence and this extremely important aspect of the matter has been ignored by the learned Trial Court while passing the impugned order and closing the right of the plaintiffs to lead evidence. No other point was urged.

5. On the other hand, learned counsel appearing for the respondents has argued that the order passed by the learned Trial Court suffers from no infirmity, because if one peruses the record of the case, the same would demonstrate that despite about 10 opportunities having been granted by the Court to the plaintiffs, they failed to lead any evidence.

6. On a previous date, this Court had called for the record from the learned Trial Court.

7. A perusal of the record demonstrates that the suit was filed by the plaintiffs before the learned Trial Court on 29.10.2013. After completion of pleadings, the issues were framed by the learned Trial Court on 14.05.2014. Thereafter, the case was ordered to be listed on 09.06.2014 for recording the statements of plaintiffs’ witnesses. On 09.06.2014, learned Trial Court passed the following order:

“No PWs present. Time prayed for producing PWs. Allowed. Let PWs. be produced before this Court on 07.07.2014.”

8. On 07.07.2014, the following order was passed:

“No PWs present today. Time prayed for producing PWs. Allowed in the interest of justice. Let PWs be again produced before this Court on 02.08.2014. Last opportunity be granted.”

9. Thereafter, on 02.08.2014, the following order was filed:

“No. PWs are present. Time prayed. Granted. Now order dated 07.07.2014 be again complied with for 13.078.2014.”

10. On 13.08.2014, the following order was passed:

“Case was listed for PWs, but an application U/O 6 Rule 17 CPC filed. Copy supplied. Case be listed for reply on 12.09.2014.”

11. Record demonstrates that on 08.10.2014, when the matter was listed before the learned Trial Court, it was represented before the Court by the parties that there was some possibility of the matter being amicably settled between them and accordingly, the parties were directed to appear before the Mediation Centre on 27.10.2014. Further, as per the record, when the case was listed before the learned Trial Court on 03.12.2014, the Court was informed that the parties were not able to settle the matter. Thereafter, the case was listed again, permitting the defendants to file reply to the application filed u