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CHATTAR SINGH & Ors v. GURGAL - CR-5450-2005  RD-P&H 146 (8 September 2005)
Civil Revision No.5450 of 2005
Date of decision:20.10.2005
Chattar Singh and others
Present: Mr. Lokesh Sinhal, Advocate for the petitioners.
S.S. Saron, J.
This petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 8.9.2005 (Annexure-P.2) passed by the learned Additional Civil Judge (Senior Division), Palwal whereby the application filed by the defendants-petitioners for allowing them to examine themselves as their own witnesses has been declined.
Besides, a challenge is also made to the order dated 23.8.2004 whereby the evidence of the defendants was closed by the order of the Court.
The plaintiff-respondent Gurgal filed a suit for possession by way of redemption of mortgage against the defendants-petitioners. The issues were framed in the case and the plaintiff closed his evidence on 11.3.2003. Thereafter, the case was fixed for evidence of the defendants- petitioners. On 23.8.2004, the defendants' evidence was closed. The defendants thereafter filed an application dated 13.9.2004 (Annexure-P.1) under Section 151 of the Code of Civil Procedure (`CPC' for short) seeking permission to allow them to examine themselves as their own witnesses. The said application having been declined by the impugned order dated 8.9.2005 they have approached this Court.
Learned counsel appearing for the petitioners contends that the learned trial Court while closing the evidence of the petitiones on 23.8.2004 failed to take into consideration the fact that defendant No.2, who was to appear for his examination, could not appear as he was ill.
Therefore, another opportunity was liable to be granted. It is contended that defendant No.2 had also annexed the out-door ticket issued by Government Ayurvedic Dispensary, Bahin (Faridabad) which has not been considered. It is also contended that no prejudice would be caused C.R. No.5450/2005
to the plaintiff-respondent if more time is granted to the defendants- petitioners to examine the witness.
I have given my thoughtful consideration to the contentions of the learned counsel for the petitioners. It is appropriate to note that the evidence of the plaintiff was closed by him on 11.3.2002. The defendants was to lead his evidence on 21.5.2002 on which date no evidence of the defendants was present. The case was then taken up on 16.7.2002 on which date again no evidence of the defendants was present. Last opportunity to lead evidence was granted on 18.9.2002 on which date one witness of the defendants was present but could not be examined as Court time was over. The time was granted till 29.1.2003 on which date the file was not taken up as the officer had relinquished the charge. Thereafter, last opportunity was granted for 8.10.2003 to the defendants to lead their evidence. On the said date, however, an application was filed for impleading the LRs on record. Later on, the defendants was granted another opportunity to lead their evidence on 8.6.2004, however, again no evidence was produced. Then the case was adjourned for 28.7.2004 so as to enable the defendants to produce their evidence but no evidence was produced. Then one more opportunity was granted subject to last opportunity for 23.8.2004 on which date again no oral evidence of the C.R. No.5450/2005
defendants was present and counsel tendered some documents in evidence. On the said date i.e. 23.8.2004 the evidence of the defendants was closed by the order of the Court. In the circumstances, sufficient opportunities were granted to the defendants to lead their evidence and they have not led the same. The learned trial Court observed that there was nothing on the file to show that the defendants had remained ill for the entire period of two years from 21.5.2002 to 23.8.2004. Besides, the defendants did not assail the order dated 23.8.2004 closing their evidence by order. It was observed that the defendants did not file any revision petition in this Court against the said order. In the present petition though the said order dated 23.8.2004 has been assailed, however, the copy of the said order has not been placed on record. Therefore, this Court is not in a position to examine the validity of the said order and a petition assailing an order without copy of the same is not maintainable in view of the judgment of the Hon'ble Supreme Court in Surinder Singh v. Central Government and others, AIR 1986 SC 2166. In the circumstances and keeping in view the fact that the defendants were not serious in pursuing the case, no ground for interference with the impugned order in exercise of the inherent jurisdiction of this Court under Article 227 of the Constitution of India is made out.
Consequently, the civil revision petition is dismissed.
October 20, 2005. (S.S. Saron)
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