IMPORTANT POINT
When a delay is caused by any party to suit in complying time frame given in statute for doing any particular action, burden of satisfying Court by giving sufficient explanation for such delay lies upon defaulting party.

ORDER

Rajesh Shankar, J.—The present writ petition has been filed for quashing the order dated 16.05.2019 (Annexure-5 to the writ petition) passed by the Civil Judge (Jr. Div.)- II, Dhanbad in Title Suit No. 58 of 2010 whereby the application filed by the petitioner for recall of the order dated 02.08.2018 by which the evidence of the defendant/petitioner was closed, has been rejected.

2. Learned counsel for the petitioner submits that the plaintiffs/respondents have filed Title Suit No. 58 of 2010 seeking the following reliefs:-

“(a) For a decree in favour of the plaintiffs against the defendants declaring the plaintiffs absolute right, title and interest by confirming their possession over the suit land.

(b) A decree for permanent injunction restraining the defendants, their men, agents, servants to interfere over the suit land.

(c) For decree of recovery of Khas Possession of the suit land, if the plaintiffs are found out of possession.

(d) For cost of the suit.

(e) Decree for other and further relief which the plaintiffs are entitled.”

3. On notice, the petitioner/defendant No.1 appeared in the said suit and filed his written statement denying the claim of the plaintiffs/respondents. The evidence of the plaintiffs was closed on 11.07.2017 and the case was fixed for evidence of the defendant. The petitioner filed the original sale deeds on 14.12.2011 and he had to prove the same by producing a witness. However, the evidence of the petitioner/defendant No.1 was closed on 02.08.2018. Thereafter, the petitioner filed an application on 17.01.2019 for recalling the order dated 02.08.2018 and for allowing him to adduce further evidence. The respondent Nos. 1 to 5/plaintiffs filed rejoinder to the said petition of the petitioner. The learned Court below rejected the said application of the petitioner vide the impugned order dated 16.05.2019. Hence, the present writ petition.

4. Learned counsel for the petitioner submits that the said sale deeds are the relevant documents for proper adjudication of the case and as such the same are required to be proved by producing a witness. Since the petitioner is an old and ailing person, he was not able to produce the witness to prove the said documents before the date of closure of his evidence. If the petitioner is not permitted to prove the said documents by adducing the witness, he would suffer irreparable loss and injury.

5. Heard learned counsel for the petitioner and perused the impugned order dated 16.05.2019. The learned Court below while rejecting the application of the petitioner, has recorded that after examination of the petitioner as D.W-1, his evidence was closed at the request of his lawyer. It has also been recorded that the documents which the petitioner has sought to be proved, were filed without obtaining the leave of the Court as per the provisions of law.

6. Learned counsel for the petitioner puts reliance upon the judgments of this Court rendered in the case of Phatan Mandal Vs. Sk. Kamruddin & Ors. (W.P.(C) No. 4247 of 2013) and Smt. Shobha Devi Vs. Smt. Gauri Devi (W.P.(C) No. 7484 of 2011).

7. To appreciate the contention of learned counsel for the petitioner, I have gone through the aforesaid judgments.

8. In the case of Phatan Mandal (Supra), the plaintiff’s evidence was closed without examining him as a witness and this Court having taken into consideration the facts and circumstances of that case, disposed of the writ petition allowing an opportunity to the petitioner to examine himself as a witness in the said case.

9. In the case of Shobha Devi (Supra), this Court found that without appreciating the fact that the defendant witness had filed the attendance, the Court below closed the defendant’s evidence and thus the reopening of the evidence was allowed as a last opportunity on imposing cost.

10. In the case of K. K. Velusamy Vs. N. Palanisamy, (2011) 11 SCC 275, the Hon’ble Supreme Court has held as under:-

“13. The Code earlier had a specific provision in Order 18 Ru