Civil Revision No. 671 of 2012

(1)

IN THE PUNJAB AND HARYANA HIGH COURT

AT CHANDIGARH

Civil Revision No. 671 of 2012 (O&M)

Date of decision : 30.3.2012

Sukhbir Singh and another

..... Petitioners

vs

Harbilas Singh and others

..... Respondents

Coram:

Hon'ble Mr. Justice Rajesh Bindal

Present:

Mr. Sanjiv Gupta, Advocate, for the petitioners.

Mr. Randeep Singh, Advocate, for the respondents.

Rajesh Bindal J.

Prayer in the present petition filed under Article 227 of the

Constitution of India is for setting aside order dated 5.9.2011 passed by the

learned court below, whereby evidence of the petitioners-plaintiffs was

closed by order of the court.

The proceedings in the present case arise out of a suit for

injunction filed by the petitioners-plaintiffs against the respondents-

defendants.

Learned counsel for the petitioners submitted that the suit was

filed by the petitioners-plaintiffs on 26.7.2007. Petitioner no. 1 is nephew of

the respondents. After filing of written statement, the case was fixed for

framing of issues. However, defendant nos. 1 and 2 were proceeded against

ex-parte. Thereafter, they filed application for setting aside ex-parte order,

which was allowed on 18.5.2008. The case was fixed for the first time for

evidence of the petitioners only on 12.3.2010. The petitioners in their

evidence examined three witnesses including petitioner no. 1 as PW3.

However, his cross-examination was deferred on the request of counsel for

the respondents-defendants. But the learned court below on 5.9.2011 closed

the evidence of the petitioners by order. Learned counsel for the petitioners

submitted that the petitioners are not at all responsible for delay, rather, it is

the respondents, who earlier did not appear and were proceeded against ex-

parte. The petitioners have tried their best to conclude the evidence but due

Civil Revision No. 671 of 2012

(2)

to reasons beyond their control, it could not be concluded. They only want

to get petitioner no. 1 cross-examined. He prays that in case one opportunity

is granted, petitioner no. 1 will appear in the court on the next date i.e.

3.4.2012 to get himself cross-examined.

On the other hand, learned counsel for the respondents

submitted that the suit was filed by the petitioners in the year 2007. They

only want to grab the property. They have availed of numerous

opportunities to lead their evidence. The submission is that in view of the

fact that the petitioners have availed of number of opportunities, the

impugned order passed by the court below be upheld. In support of his

arguments that the learned court below has rightly closed the evidence of

the petitioners, learned counsel for the respondents placed reliance upon

judgment of Hon'ble the Supreme Court in 2011 (4) RCR (Civil) 807 M/s.

Shiv Cotex vs Tirgun Auto Plast P. Limited and others and 2001 (1) Civil

Court Cases 0114 Sarjeet Kaur vs Gurmail Singh (P&H).

Heard learned counsel for the parties and perused the paper

book.

The facts of the case are borne out from the record produced by

the parties. As is evident from the zimni orders, it is not that only the

petitioners were responsible for delay. Earlier defendant no. 1 and 2 were

proceeded against ex-parte due to their non-appearance and thereafter, the

application for stay remained pending. The case is stated to be fixed before

the court below on 3.4.2012.

No doubt, Hon'ble the Supreme Court in M/s. Shiv Cotex's case

(supra), has opined that after closer of evidence of any of the parties to the

litigation, the principle that one more opportunity be granted is not to be

applied mechanically. Though the provision that only three opportunities

are to be granted to the parties to lead their evidence is not mandatory, but

still a case has to be made out in case any further opportunity is to be

granted. In the present case when plaintiff no. 1 had appeared in court as

PW3, he tendered his affidavit of evidenc