Roshan Lal vs Kewal Singh Pundir And Others

Alok Kumar Verma, J

By way of this revision, the revisionist-defendant no. 6 has challenged the order dated 09.09.2022, passed by learned Additional District Judge, Vikasnagar, District Dehradun in Original Suit No. 206 of 2007, “Kewal Singh Pundir and Another Vs. Saral Kishore (deceased) and Others” whereby the paper no. 174C2, filed by revisionist-defendant no. 6 for permission to produce defence evidence, has been dismissed.

In the said Original Suit, filed by the respondent nos. 1 and 2, plaintiffs, for specific performance of contract, issues were framed on 16.09.2021 and the first date fixed for plaintiffs’ evidence was 24.02.2022. On 27.07.2022, plaintiffs closed their evidence. The case was adjourned to 01.08.2022 for evidence of defendant. As is evident from the record, defendant nos. 2 and 3 filed affidavit of examination-in-chief of DW1 on 02.08.2022. DW1 was cross-examined on 04.08.2022. Defendant Nos. 2 and 3 closed their evidence on the same day i.e. on 04.08.2022. Thereafter, on 04.08.2022, the Trial Court adjourned the matter and fixed it for arguments on 24.08.2022.

Mr. Piyush Garg, learned counsel for the revisionist, contended that defendant nos. 4, 5 and 6 (revisionist) have filed a joint written statement in the said original suit. Defendant Nos. 2 and 3 produced their evidence on 02.08.2022 and on the very next date i.e. on 04.08.2022, the witness produced by the defendant nos. 2 and 3, was cross-examined. After cross-examination of DW1, defendant nos. 2 and 3 closed their evidence. Then, learned Trial Court adjourned the case and fixed it for arguments on 24.08.2022. Mr. Piyush Garg, Advocate, argued that defendant nos. 4, 5 and 6 could have adduced their evidence only after the completion of the evidence of defendant nos. 2 and 3. But, defendant nos. 4, 5 and 6 were never given any opportunity to produce their evidence. After closing the evidence of defendant nos. 2 and 3 by the Trial Court, the next date was fixed for final arguments. Mr. Piyush Garg, Advocate, submitted that before the next date, defendant nos. 4, 5 and 6 filed an application dated 18.08.2022 (paper no. 174C2) seeking opportunity to lead evidence and also filed their affidavits in examination-in-chief.

Mr. Karan Anand, learned counsel appearing for respondent nos. 1 and 2- plaintiffs, opposed the revision. However, he fairly conceded that opportunity to adduce evidence was not granted to the defendant nos. 4, 5 and 6.

It was the duty of the trial court to give an opportunity to the defendant nos. 4, 5 and 6 and to call upon them to produce their evidence.

Looking to the totality of the facts of this case, this Court is of the view that the Trial Court should have given opportunity to the defendant nos. 4, 5 and 6 to lead evidence.

Accordingly, revision is allowed. The impugned order dated 09.09.2022 is set aside. The affidavits filed in examination-in-chief by defendant nos. 4, 5 and 6 are ordered to be taken on record. After taking the said affidavits, the Trial Court shall proceed with the original suit in accordance with law.

The Original Suit is pending since 2007. Defendant Nos. 4, 5 and 6 are directed to complete their entire evidence within two months from today. Learned Trial Court is also directed to expedite the trial and decide the said original suit without granting any unnecessary adjournment to either of the parties.