Tejinder Singh vs Manjinder Pal Singh and Others

T.P.S. Mann, J.—The petitioner, who is defendant in the suit filed by respondent No.1 has filed the present revision under Article 227 of the Constitution of India so as to challenge the order dated 22.8.2012 passed by Civil Judge (Senior Division), Ludhiana whereby his defense was struck off u/s 35B C.P.C. While passing the impugned order, the trial Court observed that neither any DW was present nor cost deposited in the account of District Legal Aid Services Authorities. Under these circumstances, it had no other option but to strike off further prosecution of the suit by the petitioner.

Counsel for the petitioner has submitted that the plaintiff himself had taken more than nine years to examine his entire evidence and it was only when he could not complete it that the trial Court vide order dated 15.11.2010 closed his evidence. Thereafter, the plaintiff-respondent preferred a revision in this Court in which he was granted relief of one more effective opportunity to complete his evidence subject to payment of Rs. 12,000/-. After the plaintiff had examined his evidence, the defendants started leading their evidence. Thereafter, an application was filed by one Harpal Singh under Order I Rule 10 CPC for impleading him as party. That application was finally dismissed on 13.6.2012. It was mainly because of the pendency of the said application that the defendant-petitioner could not examine his entire evidence. It is further submitted that though on 13.8.2012, the trial Court had adjourned the case to 22.8.2012 for DWs subject to costs of Rs. 100/- in legal aid, yet it was not specifically mentioned that in the event of non-payment of the costs, the defense would be closed. Relying upon the judgment of V. Veeresh and another Vs. Smt. Chiloth Kumari, 2011 (6) ALT 248, it has been further submitted that the impugned order could not have been passed u/s 35B C.P.C. as no mention was made about the consequences in the event of non-payment of costs in the order dated 13.8.2012.

Be that as it may, the Court is of the view that one more opportunity is required to be granted to the defendant-petitioner to examine his remaining evidence. Resultantly, the revision is disposed of with a direction to the trial Court to grant one more opportunity by terming it as final so as to enable the defendant-petitioner to examine his evidence subject to payment of Rs. 10,000/- as costs to the plaintiff respondent. It shall, however, be the responsibility of the defendant-petitioner to produce his evidence on his own before the trial Court on the date so fixed.