Deepak Kumar vs Vinod Kumar
1988 Latest Caselaw 10 Del

JUDGMENT

Sunanda Bhandare, J.

(1) Since a very short point is involved in the revision petition I have beard the learned, counsel for the parties and proceed to decide the revision petition itself.

(2) This revision petition under Section 115 of the Code of Civil Procedure is directed against the order of the Sub Judge, 1st Class, Delhi dated 20th August 1987 in suit no. 505/80 whereby the evidence of the petitioner- defendant was closed and the case was listed for final arguments.

(3) The respondent-plaintiff filed a suit against the petitioner-defendant for recovery of possession of the property bearing no. 1550,1556 (half) & 1557 (half) situated at Church Road, Kashmere Gate, Delhi. The petitioner-defendant has pleaded in his written statement that his father was the tenant under the custodian of evacuee property and thereafter under the respondent by operation of law. In order to prove that the petitioner was the tenant under the respondent he wanted certain receipts issued by the Custodian to be proved in court. Therefore, he wanted to examine an official of the Custodian Department. It appears that after the evidence was closed by the respondent-plaintiff in June 1984 the case was adjourned time and again and yet this witness could not be examined. The last such date was fixed for 20th August 1987, however on this date the witness could not be examined land a prayer was made for fixing some other date for the examination of the witness which was rejected and the court closed the evidence.

(4) It was contended by the learned counsel for the petitioner that though the respondent-plaintiff had closed the evidence in 1984 and the case was adjourned time and again for the evidence of the petitioner, the delay had not occurred because of any fault of the petitioner. On some occasions the witness was present, however he could not be examined either because the Presiding Officer was on leave or because the respondent-plaintiff sought an adjournment. Learned counsel submitted that on 20th August 1987 the case 257 was only listed for proper orders and not for recording the evidence of the witness, however the court without allowing the petitioner to summon this witness, closed the evidence. Learned counsel submitted that the petitioner had taken all appropriate steps for summoning the witness and, therefore, if the evidence of the petitioner is closed without giving him the opportunity of examining the official from the office of the Custodian, grave injustice will be done to the petitioner.

(5) On the other band, it was contended by the learned counsel for the respondent that for some reason or the other, the case is getting delayed and even after the respondent had closed the evidence as early as in the year 1984 the evidence of the petitioner-defendant has not been concluded and the court was right in closing the evidence of the petitioner-defendant.

(6) After having considered the rival submissions of the learned counsel for the parties and going through the order sheet which is exhaustively reproduced by the petitioner in his revision, I find that though it is true that the evidence of the petitioner-defendant for some reason or the other has not been concluded since 1984 the fault is not entirely of the petitioner. It appears that he has taken steps to summon the witness whenever he was directed to do so. Even today, learned counsel for the petitioner submitted that he will take all necessary steps to serve the witness at his own responsibility on any date specified by the trial court and one final opportunity be given to him to examine this official witness so that justice in the matter is done. I find substantial force in the contention of the learned counsel for the petitioner and I think that it is in the interest of justice that the petitioner is given one last and final opportunity to examine the official witness from the Custodian Department. No doubt the respondent though has a justifiable grievance because of the delay, but in my opinion he can be compensated by awarding costs in his favor.

(7) I, therefore, allow the revision petition and direct the trial court to summon the official witness from the office of the Custodian Department for any date convenient to the trial court and conclude the evidence within two months from today and given the petitioner one last opportunity to examine this witness. The responsibility of service of summons will be entirely on the petitioner and non-service of summons will not be a ground for any further opportunity to be granted for this purpose. The parties will appear before the trial court on the date already fixed for appropriate directions in this regard. The petitioner will pay costs of Rs. 300.00 to the respondent.