Shri Niwas vs Shakuntala Devi And Anr.
1987 Latest Caselaw 498 Del

JUDGMENT

Sananda Bhandare, J.

(1) This civil revision under Section 115 of the Code of Civil Procedure is directed against the order of the Sub-Judge, 1st Class, Delhi dated 18th August 1987 whereby the application filed by the petitioner under Order 18 Rule 17-A read with Section 151 of the Code of Civil Procedure was dismissed.

(2) The respondents who are the original plaintiffs filed a suit for possession and mean profits against the petitioner in the court of Senior Sub- Judge, Delhi being suit No. 522/82. After the evidence of the plaintiff was closed the case was listed for the evidence of the defendant i.e. the petitioner be rein on 13-3-1987, however since there was some talk for compromise, the case was adjourned for 3-4-1987. On that date the compromise was to be recorded in court, however the compromise talks failed, the case was again listed for defendant's evidence on 14.5.197. On that date, defendant's evidence could not be recorded because the counsel for the defendant was not available. The trial court, therefore, fixed 13.7 1987 and gave last opportunity to the defendant to conclude his evidence. On 13.7.1987 neither the defendant nor his counsel appeared. The trial court, therefore, closed the evidence. Thertafter, the application under Order 18 Rule 17A read with Section 151 of the Code of Civil Procedure was filed on which the impugned order was passed.

(3) It was contended by the learned counsel for the petitioner that the petitioner could not remain present on 13th July 1987 because he was held up at Balaji where he had gone with his family on a visit and the lapse on the part.of the petitioner was bona fide and unavoidable and he had no intention of delaying the proceedings in any manner. When the petitioner came back from Balaji he came to know that the evidence had been closed and he, therefore, moved the application under Order 18 Rule 17A read with Section 151 of the Code of Civil Procedure.

(4) On the other had, it was contended by the learned counsel for the respondent that though the petitioner had given some explanation for not coming back from Balaji, there is no explanation given why the counsel did not appear on the date fixed. Learned counsel further submitted that the petitioner is responsible for delaying the proceedings because he is in possession of the premises and is enjoying the same without any payment for its use and occupation. It was submitted that the application under Order 18 Rule 17A read with Section 151 of the Code of Civil Procedure was not maintainable because the petitioner did not want to adduce additional evidence but wanted the evidence, which was closed, to be re-opened.

(5) Having considered the arguments of the counsel for both the sides, I think that without going into the question whether the application under Order 18 Rule 17A read with Section 151 of the Code of Civil Procedure was maintainable or not, this is one such case where in the interest of justice, one more opportunity should be given to the petitioner to adduce his evidence. No doubt, the counsel for the petitioner ought to have appeared even though the petitioner was not able to come back from Balaji. It is true that aparty cannot be penalised for the fault of the lawyer but then that does not mean that no explanation need be given for the non-appearance of the lawyer. Furthermore, though the petitioner has stated that he was help up at Balaji he has pot stated what was the unavoidable reason for not reaching back in time for the case on 13.7.1987 particularly when he was well aware that a last opportunity was given to him to conclude his evidence on that date. For this reason I think that though the petitioner should be given one more opportunity to adduce his evidence the respondent should also be compensated by awarding costs in his favor.

(6) Learned counsel for the petitioner states that the petitioner does not have to examine any other witness except the petitioner himself as a witness. There is, therefore, no question of any further delay being caused because of the procedure to be followed for issuing summons etc. The case is already listed before the trial court on 23.11.1987. Learned counsel for the petitioner states that the petitioner will examine himself on that date.

(7) I, therefore, allow the petition with the direction that the petitioner will be given one final opportunity to examine himself on the next date fixed before the trial court and thereafter the petitioner's evidence will be closed. The respondents will however be entitled to costs quantified at Rs. 1500.00 . The opportunity mentioned hereinabove will be granted only if the petitioner pays the costs indicated hereinabove.