Babu Bhai Kashyap vs Meera And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 16.12.2019 (Annex.4) passed by the trial court, whereby the application filed by the petitioner for according opportunity to led evidence on some other date as the petitioner was suffering from acute vertigo, vomiting, verticaria, has been rejected.

The trial court, on the application, came to the conclusion that the matter was fixed in the year 2015 for evidence of the petitioner and several opportunities were granted on payment of costs, however, the evidence has not been led and repeatedly, adjournments were being sought and as such, no case for grant of time is made out and rejected the application.

Learned counsel for the petitioner made submissions that the petitioner may be accorded one more opportunity to led evidence and that the petitioner would appear before the trial court on the next date fixed i.e. 10.02.2020 and that on account of old age, as the petitioner was suffering from ailment, he could not appear.

Learned counsel for the respondents vehemently opposed the submissions. It was submitted that the conduct of the petitioner does not call for any indulgence from this Court, inasmuch as, despite repeated imposition of cost by the Court, the evidence has not been led.

Further submissions have been made that the suit is based termination of tenancy under Section 106 of the Transfer of Property Act and there is hardly anything, for which, the petitioner is required to led his evidence as the suit is to be decided based on the documentary evidence available on record and, therefore, the petition filed by the petitioner deserves dismissal.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The conduct of the petitioner is writ large on record as indicated in the order-sheet dated 16.12.2019 of the trial court, wherein, repeatedly on payment of costs amounting to Rs.500/-, Rs.1000/-, Rs.3000/- and again Rs.3000/- have been imposed and despite that, the petitioner has not appeared in the witness-box and again on the date fixed for the purpose, neither the affidavit was filed nor the witness was present in the Court and therefore, the order impugned was passed by the trial court.

Though the conduct of the petitioner hardly calls for any indulgence, however, looking to the circumstances of the case, wherein, the petitioner is aged 83 years, and on the particular date claims to be suffering from vriticaria etc. and the fact that the matter is now fixed on 10.02.2020, the petitioner is accorded one last opportunity to lead evidence. However, the same would be subject to the petitioner paying all the outstanding costs, if any and further cost of Rs.20,000/- to the plaintiff / counsel for the plaintiff.

Further only the petitioner would be permitted to appear in the witness-box and no other evidence on part of the petitioner would be permitted to be produced looking to the nature of the case.

In case, on the next date i.e. 10.2.2020, if the petitioner does not pay the costs as directed herein-before and does not produce himself for evidence, no further opportunity shall be granted and the trial court would be free to proceed with the matter as already ordered by it.

With the above directions, the writ petition filed by the petitioner stands disposed of. The order dated 16.12.2019 passed by the trial court stands modified.