Raghu Nath vs Krishanu Ram

Ajay Mohan Goel, J

By way of this petition filed under Article 227 of the Constitution of India, petitioner has assailed order dated 05.12.2016 passed by the Court of learned Civil Judge (Sr. Divn.) Ghumarwin, District Bilaspur, H.P., which reads as under:-

"No R.Ws present. Many opportunities has already been granted to respondent to produce the witness. But respondent failed to produce the witnesses. Hence evidence closed by the order of the Court. Now to come up for argument on 03.01.2017."

Learned Senior Counsel for the petitioner submits that as the petitioner is a respondent in the application filed against him under Order 39, Rule 2-A of the Code of Civil Procedure and is an 81 years old person, therefore, this petition be allowed on equity and he may be given one more opportunity to appear in the witness box so that he can put forth his version before the learned Trial Court, keeping in view the fact that the proceedings under Order 39, Rule 2-A of the Civil Procedure Code are punitive in nature. Learned Senior Counsel further submits that petitioner be allowed to produce any other evidence which may be necessary on self responsibility by granting one opportunity in this regard also.

On the other hand, learned Counsel for the respondent submits that keeping in view the fact that about 10 opportunities stood granted by the Court below to the petitioner to lead evidence and yet he failed to do so, this case does not calls for exercise of any discretion by this Court because the learned Trial Court itself has been more than considerable towards the petitioner. He further submits that the application under Order 39, Rule 2-A of the Code was filed in the year 2013 and because of the acts of omission on the part of the petitioner, adjudication upon the same is still pending.

Having heard learned Counsel for the parties and having perused the impugned order, this Court can safely say that there is no perversity with the order passed by the learned Trial Court vide which it closed the right of the petitioner to lead evidence. However, taking into consideration the submissions made by learned Senior Counsel appearing for the petitioner and the fact that proceedings so initiated against the petitioner are under Order 39, Rule 2-A of the Civil Procedure Code and that the petitioner is an 81 years old person, this petition is disposed of by modifying the order passed by the learned Trial Court, which stands assailed by way of present petition, to the extent that one final opportunity shall be granted by the learned Trial Court to the petitioner to lead his evidence before it. This, however, shall be subject to payment of cost of 20,000/-by the petitioner to the respondent herein. It is clarified that in case on the date which shall be fixed by this Court for the appearance of the parties before the learned Trial Court, cost of 20,000/- by way of Bank Draft is paid by the petitioner to the respondent, then learned Trial Court shall fix a date for recording the evidence of the petitioner herein. In case, cost is not paid on the said date by the petitioner, then no further opportunity shall be granted in this regard. In case, cost as directed by this Court, is paid, then also not more than one opportunity shall be granted by the learned Trial Court to the petitioner herein to lead his evidence. If, besides himself, petitioner intends to examine any other witness, the same will also have to be produced by him before the learned Trial Court on the said date itself at his own responsibility.

With these observations, instant petition stands disposed of. Parties through their respective learned Counsel are directed to appear before the learned Trial Court for the purpose of payment of cost and fixation of a date for recording the evidence of the petitioner on 18.11.2019.

At this stage, learned Counsel for the parties inform the Court that as per their instructions, the matter is pending adjudication before the Court of Civil Judge, Court No. 3, Ghumarwin, District Bilaspur and presently said Court is not functional. Under these peculiar circumstances, it is ordered that this case shall stand transferred from the Court of learned Civil Judge, Court No. 3, Ghumarwin, to the Court of learned Senior Civil Judge, Ghumarwin, District Bilaspur. The matter shall be listed on the date which has been fixed by this Court before the said Court before the said Court.

The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.