IMPORTANT POINT
Failure to produce witnesses despite multiple opportunities may lead to the closure of the right to lead evidence.

JUDGMENT :

Ajay Mohan Goel, J.

CMP No.2117 of 2024

By way of this application, a prayer has been made for recalling order dated 27.02.2024. Mr. Vinod Thakur, learned counsel, who is there in the Court alongwith learned Senior Counsel, submits that as the statement for withdrawal of the petition was made by him unilaterally without any instruction from the petitioner, therefore, the petitioner is confronting him as to why he made the statement. Accordingly, he submits that order dated 27.02.2024 may be recalled to the extent the Court has recorded his prayer for withdrawal of the petition and appropriate orders may otherwise be passed in the main case on merit.

2. In view of above, the Court recalls order dated 27.02.2024 to the extent that from the said order, it be deleted that learned counsel for the petitioner prayed for and was permitted to withdraw the petition. The application stands disposed of.

CMPMO No.61 of 2024

3. As agreed, this petition was heard afresh and the same stands disposed of as under:­

By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed order dated 22.11.2023, passed by learned Civil Judge, Dalhousie, District Chamba, H.P. which reads as under:­

“Today also no PW present. Learned counsel for plaintiff has prayed more time for examining PW’s. Prayer considered and rejected as the case has been listed for plaintiff evidence since 25.02.2019, but today despite several opportunities granted to the plaintiff. Therefore, this Court is constrained to close the plaintiff evidence. Accordingly, plaintiff evidence is closed by the order of the Court.

Let now case be listed for defendant evidence returnable for 28.02.2024. Steps, if any, be taken within 15 days.”

4. Having heard learned Counsel for the petitioner and having perused the zimni orders appended with the petition, this Court does not finds any infirmity with the impugned order.

5. Record demonstrates that the issues in the Civil Suit were framed on 25.02.2019 and on the said date the case was ordered to be listed for recording plaintiff’s evidence for 10.07.2019. On the said date, learned Presiding Officer was on medical leave and the matter was ordered to be listed for 20.07.2019. On 20.07.2019, the case was listed for recording plaintiff’s evidence for 24.09.2019. On 24.09.2019, the following order was passed:­

“No PWs present. Time prayed. Granted. Be listed for PWs on 25­02­2020. Steps be taken within seven days.”

Thereafter, on 25.02.2020, the following order was passed:­

“Four affidavit tender in evidence. Time prayed for cross­examination. Allowed. Let case be listed for cross­ examination on 9.4.2020.”

Thereafter, when the matter was listed on 27.03.2021, the following order was passed:­

“Case file taken up today as per separate office orders duly notified. PWs not present for cross­examination. Time prayed. Granted. Be summoned for 21­6­2021. Steps, if any, be taken within a week.”

This was followed by order dated 18.10.2021, which reads as under:­

“Case file taken up today for effective hearing vide separate office order dated 21­06­2021 notified copy of which placed on record.

No PW present as steps not taken. Time prayed.

Allowed. Let case file be listed for PWs on 22­02­2022.

Steps, if any, be taken within five days.”

6. To cut the matter short, fact of the matter is that till the impugned order was passed by the learned Trial Court, despite several opportunities having been granted, Pws were not produced by the plaintiff for the purpose of cross­examination.

7. This Court on more than one occasion has observed that ordinarily three opportunities should be granted to the parties to lead evidence and in case the Court is granting any further opportunity, then there has to be some explanation as to why this indulgence is being shown. In the present case, more than five to six opportunities were granted to the plaintiff to lead evidence which includes opportunities that were granted after the case file was tra