O R D E R

% 26.07.2017 CM No.26367/2017 (for exemption).

1. Allowed, subject to just exceptions. 2. The application stands disposed of.

CM(M) No.785/2017, CM No.26366/2017 (for stay) and CM No.26368/2017 (under Section 151 of the CPC for calling of record).

3. This petition under Article 227 of the Constitution of India impugns the order (dated 17th May, 2017 of the Court of Additional District Judge – 05 (South), Saket Courts, New Delhi) allowing the application of the respondent / plaintiff for recalling of the order closing the evidence of the respondent / plaintiff.

4. The counsel for the petitioner / defendant has been heard.

5. The suit from which this petition arises was instituted in this Court; issues were framed in the suit on 9th September, 2014 and the respondent / plaintiff directed to file affidavits by way of examination-in-chief of its witnesses within six weeks and the matter put up before the Joint Registrar on 17th November, 2014 “for marking exhibits on documents and fixing dates of trial”. The respondent / plaintiff did not file any affidavits and on

17th November, 2014 sought time to file affidavits by way of examination-

in-chief.

6. Last and final opportunity was granted to the respondent / plaintiff to file list of witnesses along with affidavit by way of evidence within two weeks and the matter posted to 4th March, 2015.

7. The respondent / plaintiff still did not file affidavits and no witnesses of the respondent / plaintiff was present before the Joint Registrar on 4th March, 2015. On request of the counsel for the respondent / plaintiff which was not opposed, the suit was adjourned to 10th August, 2015 for the respondent / plaintiff‟s evidence.

8. On 10th August, 2015, though one witness of the respondent / plaintiff was present but the counsel for the respondent / plaintiff sought further time to file his affidavit by way of examination-in-chief; the said request was declined; the evidence of the respondent / plaintiff closed and the suit posted to 9th December, 2015 for evidence of the petitioner / defendant.

9. The counsel for the petitioner / defendant on enquiry states that the petitioner / defendant has already filed affidavit by way of examination-in-

chief of one witness.

10. On the next date of hearing i.e. 9th December, 2015, the suit, owing to the enhancement in the minimum pecuniary jurisdiction of this Court, was transferred to the District Judge and the parties directed to appear before the District Judge on 3rd March, 2016.

11. The counsel for the petitioner / defendant on enquiry states that tendering of the affidavit by way of examination-in-chief of the witness of the petitioner / defendant has not taken place as yet.

12. It is at that stage that the respondent / plaintiff filed the application against order whereon this petition has been preferred.

13. The counsel for the petitioner / defendant firstly contended that the order of the Joint Registrar, when the suit was pending before this Court, closing the evidence was appealable by a Chamber Appeal and which remedy was not availed of and the respondent / plaintiff filed the application for opportunity to lead evidence only after about two orders, when the matter was before the District Judge.

14. In my view, merely because the respondent / plaintiff did not prefer a Chamber Appeal would not disentitle the respondent / plaintiff from making an application in the nature of re-call of the order closing the evidence.

15. Unfortunately in the present suit, no substantial proceedings have taken place after the order of closure of evidence of the respondent / plaintiff. I have perused the issues framed in the suit. It appears that once the respondent / plaintiff had not led any evidence, there was no need for the suit to be posted for evidence of the petitioner / defendant or for the petitioner / defendant to file affidavit by way of examination-in-chief of its witnesses. The suit could, on 9th December, 2015, itself have been posted before the Bench fo