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Padam Singh v. II Addl.District Judge, Agra and Others - WRIT - C No. 5764 of 1983 [2004] RD-AH 1349 (8 November 2004)


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Court No. 51

Civil Misc. Writ Petition No. 5764 of 1983

Sri Padam Singh   Vs. The II Addl. District Judge, Agra and others.

Hon'ble V.C.Misra,J.

Heard Sri Vishal Khendelwal, holding brief of Sri Prakash Chandra, learned counsel for the petitioner and learned standing counsel for the respondents.

1. This writ petition has been filed against the judgment and order dated 7.4.1983 passed by the II Additional District Judge, Agra, in Civil Revision No.93 of 1982.  This revision has been preferred against the order-dated 26.5.1982 passed by the III Additional Civil Judge, Agra by which the evidence of the plaintiff was closed and the evidence of defendant was recorded in absence of the counsel for the petitioner.  Two witnesses of the plaintiff had already been examined and 26.5.1982 was fixed for adjournment on the application of the other plaintiff to produce further remaining evidence on 26.5.1982.  The case was called out.  The plaintiff was present in the court personally.  He orally sought for 10 minutes' time to bring his counsel, which was allowed by the trial court.  Subsequently, after some time the case was again called out and though, the plaintiff was present in person, but his counsel was not present.  He again prayed for one hour adjournment to enable him to bring his counsel.  Learned Civil Judge rejected his oral prayer and proceeded with the case and passed an order closing his evidence.  The evidence of P.W.1 was taken on record, however, he was not cross-examined by the plaintiff and the case was fixed for argument for another date.

2. The plaintiff being aggrieved filed a revision before the revisional court, challenging the above said order dated 26.5.1982.  The defendant respondent no.3 and 4 (to the present writ petition) did not turn up before the court in revision.  After hearing the revisionist, the revisional court found that since the final argument had not been taken place and the plaintiff-revisionist had sufficient time to move an application before the trial court itself, before the arguments were to conclude for seeking permission to examine the witness, as well as cross-examine, the defendant witness, and had full opportunity to satisfy and convince the trial court that he had sufficient reasons for moving the said application against the said omission and maintainability of the application before it.  Since, neither any such attempt had been made by the plaintiff-revisionist nor any such application for adjournment had been moved on the date fixed i.e. 26.5.1982 on the ground that his counsel was so busy in another court.  the revisional Court has rightly come to the conclusion, that the circumstances indicated that the plaintiff-revisionist intended to delay the disposal of the case, and, more so, because instead of moving such application before the trial court he has preferred the revision.  

3. The revisional Court, however, looking into the circumstances of the case did not allow the revision an ex-parte and dismissed the same ex-parte, with the specific observation " that the revisionist can seek the necessary relief from the lower court itself by moving appropriate application" and directed the trial court that it shall proceed with the case after taking into the consideration, the application of plaintiff-respondents, if any, moved by him.

4. Learned counsel for the petitioner has failed to demonstrate any illegality or error apparent on the face of the impugned order dated 7.4.1983 and 26.5.1982 (Annexure Nos. I and II to the writ petition).  I find that the order so passed is the most appropriate and just under the circumstances of the case.  Learned counsel for the petitioner has submitted that the arguments are yet to be advanced before the trial court.  

5. Under the said circumstances, the petitioner is at liberty to move an application before the trial court, showing sufficient cause of omission for not examining his witnesses and cross-examining the witness of the defendant. In case, such application is moved before the trial court, the same shall be disposed of expeditiously by the trial court in accordance with law.

The writ petition is misconceived and devoid of merit and is dismissed accordingly.  No order as to costs.

Dated: 8.11.2004



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