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BABU RAM v LRS OF SOMA RAM - CFA Case No. 17 of 2002  RD-RJ 209 (17 February 2006)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
Babu Ram Vs. Lrs of Soma Ram
S.B. CIVIL FIRST APPEAL NO.17/2002
Against judgment and decree dated 28.11.2001 passed by Addl. District
Judge, Abu Road in Civil Original Suit
No. 84/1996 Lrs of late Soma Ram Vs.
DATE OF JUDGMENT:: 17th February,2006.
HON'BLE MR.JUSTICE SATYA PRAKASH PATHAK
Mr. Sandeep Shah for appellant.
Mr. Suraj Raj Jain for respondents.
BY THE COURT:
Challenge in this appeal under Sec.96
CPC is to the judgment and decree dated 28.11.2001 passed by learned Addl. District
Judge, Abu Road, in Civil Original Suit No. 84/1996 Lrs of late Soma Ram Vs. Babu Ram, whereby the learned trial Court has passed a preliminary decree against defendant-appellant to the effect that the plaintiff is entitled to get half portions of the lands mentioned in para 1 of the plaint and appointed a Court
Commissioner for partition and submitting report.
The matter is required to be remitted back to the trial Court on a very short point that the trial Court fixed only one date for the evidence of the defendant and closing his evidence passed preliminary decree in the partition suit.
The contention of the learned counsel is that the evidence of the plaintiff was closed on 09.10.2001 and the matter was fixed on 28.11.2001 and on that date an application was moved for allowing some time to produce evidence but the application was rejected and preliminary decree was passed. Learned counsel submits that this is absolutely against the principles of natural justice and has prejudiced the case of the defendant.
On the other hand, the learned counsel for the respondents submits that no reason was assigned in the application as to for what reason the evidence was not available in the
After considering the argument and perusing the trial Court's record, it appears that on the first date fixed for the evidence of the defendant i.e. on 28.11.2001 itself, the evidence of the defendant was closed inspite of the fact that an application was moved seeking time and a preliminary decree as aforesaid was passed. In such a circumstance, the Court was not expected to proceed in hot haste and the
Court should have atleast provided one more opportunity to lead evidence especially when in this very case several opportunities were given to the plaintiff to adduce evidence during a long period stretched in the three years. Be that as it may, the procedure adopted by the trial Court was such that it has precluded the defendant's right to put his case before the trial Court which is against the well settled doctrine that justice should not only be done but it should appear to have been done.
In view of above discussions, the appeal requires to be allowed and the case requires to be remitted back to the learned trial Court for recording evidence of the defendant.
In the result, the appeal is allowed, the judgment and decree dated 28.11.2001 passed by Addl. District Judge, Abu Road in Civil
Original Suit No. 84/1996 Lrs of late Soma
Ram Vs. Babu Ram is set aside and the case is remitted for recording evidence of the defendant. The parties are directed to remain present in the trial Court on 10th March 2006.
The defendant-appellant is also directed to keep present all the witnesses required to be produced in this case on that date and the learned trial Court after recording the evidence of defendant shall proceed in the matter in accordance with law.
The record of the case be sent back forthwith so that delay may not cause on account of non-availability of the record.
In the facts and circumstances of the case there shall be no order as to costs.
(SATYA PRAKASH PATHAK)J. /jpa
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