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Judgment
Vivek Agarwal, J
Petitioner has filed this miscellaneous petition being aggrieved of the orders dated 8.11.2021 & 11.11.2021 passed by the learned 19th District Judge, Bhopal respectively whereby the right of plaintiff to lead evidence has been closed.
Learned counsel for the petitioner submits that on 3.4.2021, a direction was issued to the plaintiff to produce plaintiff's witness. On 7.7.2021, the case was taken up through video conferencing and again on that date, a prayer was made on behalf of learned counsel for the plaintiff seeking time to produce the witness. Again on 4.8.2021, time was sought. On 3.9.2021, the Presiding Officer was on leave. On 15.9.2021, again time was sought. On 20.9.2021, an affidavit under Order XVIII rule 4 of the Code of Civil Procedure was produced. On 24.9.2021, the case was fixed for argument on an application moved on behalf of the plaintiff seeking production of original copy of the agreement from the defendant on which defendant's counsel had taken time. Thereafter, the case was listed on 11.10.2021 when time was sought by the learned counsel for the defendant and again on 20.10.2021, the Presiding Officer was on leave. Thereafter, the case was listed under the head of "Proper Order" on 25.10.2021 and thereafter on 26.10.2021 when the application moved on behalf of the plaintiff to produce original agreement was rejected and the case was fixed on 8.11.2021 for plaintiff's evidence. It is admitted position that on 8.11.2021, the plaintiff's witness was not present and, therefore, the right to lead evidence was closed. Thereafter, the case was fixed for defendant's evidence on 10.11.2021. On 10.11.2021, an application under Section 151 of the Code of Civil Procedure was filed on behalf of the plaintiff, which has been rejected vide order dated 11.11.2021.
It is submitted by learned counsel for the petitioner that the case is listed tomorrow i.e.23.11.2021 before the Trial Court for defendant's evidence and if the plaintiff is given one last opportunity to lead evidence then that will be in the interest of justice.
After hearing learned counsel for the petitioner and going through the chronology of events as have been unfolded from the order sheets starting from 3.4.2011 to 11.11.2021, it is evident that the plaintiff has been very casual in his approach. However, there have been intervening events, which have not been properly taken into consideration by the learned Trial Court.
Accordingly, by way of last opportunity and subject to payment of cost of Rs.10,000/- payable to the defendant, which will be a pre-condition for the plaintiff to present himself in the witness box for cross-examination on an affidavit, which has already been produced by him under Order XVIII Rule 4 of the Code of Civil Procedure, the impugned orders dated 8.11.2021 & 11.11.2021 passed by the learned 19th District Judge, Bhopal respectively to the extent that the right of plaintiff to lead evidence has been closed, are quashed.
Let typed copy of this order be sent to the Court of 19th District Judge, Bhopal today itself by the Registry and a typed copy of this order be also handed over to Shri Avinash Zargar, leaned counsel for the petitioner for onward transmission.
It is made clear that the plaintiff shall first deposit the cost of Rs.10,000/- before the Court concerned for which an acknowledgement will be given by the defendant in the order sheet itself at 11:00 am sharp and thereafter shall produce himself for cross-examination in the hands of the defendant's counsel.
The local counsel is directed to inform this fact to the opposite party counsel during the course of the day over whats app so that they may remain prepared for cross-examination of the plaintiff's witness.
It is also made clear that under no circumstances, the plaintiff will be allowed to seek adjournment tomorrow i.e.23.11.2021 and if he fails to appear to lead evidence then the right to lead evidence will be closed and no further indulgence will be required in the matter.
In above terms, this miscellaneous petition is disposed of.
C.C. today.