Jharkhand High Court
Prashant Kumar Choudhary @ Prashant ... vs Yamuna Yadav Son Of Late Ramswarup Yadav on 28 November, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Jurisdiction)
C.M.P. No.321 of 2023
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Prashant Kumar Choudhary @ Prashant Kumar aged about 41 years
son of Sri Manikant Choudhary, resident of Brindaban Colony,
Saraihela, P.O. & P.S. Saraidhela, District-Dhanbad
.... .... .... Petitioner/Plaintiff
Versus
1. Yamuna Yadav son of Late Ramswarup Yadav
2. Smt. Anuradha Devi wife of Sri Yamuna Yadav, both resident of
Yadav Bhawan, J.C. Mallick Road, Hirapur, P.O., P.S. & District-
Dhanbad .... .... .... Respondent/Defendant
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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioner : Mr. Kalyan Banerjee, Advocate
For the Resp. Nos.1 & 2 : Mr. Pratiush Lala, Adv.
JUDGMENT
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Dated- 28th November, 2023
Heard learned counsel for the parties.
2. The instant civil miscellaneous petition under article 227 of
Constitution of India has been preferred by petitioner/plaintiff for
setting aside the part of the impugned order dated 27.02.2023 passed in
Title Suit No.259 of 2013 by learned Civil Judge, Senior Division-VI,
Dhanbad, whereby and whereunder the petition dated 14.12.2022 which
was filed for recalling the order dated 04.11.2022 whereby the plaintiff's
evidence was closed, has been dismissed.
3. Learned counsel for the petitioner submits that the
petitioner/plaintiff filed a suit on 16.09.2013 for specific performance of
contract registered as Title Suit No.259 of 2013 against the respondent
with a prayer for execution of sale deed and for declaration of right,
title, interest and confirmation of possession over the suit scheduled
land. On 09.03.2022, issues were framed and the suit was fixed for
petitioner/plaintiff's evidence and vide order dated 13.09.2022, after
cross examination of petitioner as plaintiff witness-1(PW1),
petitioner/plaintiff has been discharged and the case was fixed on
23.09.2022 for petitioner/plaintiff evidence. It is further submitted that
on 23.09.2022, the petitioner/plaintiff could not produce witness, as
such a time petition was filed and last chance was given to him for
adducing evidence, failing which an appropriate order would be
passed. On 29.09.2022, the petitioner/plaintiff again filed a time petition
to adduce his evidence and accordingly, one more last chance was
given to the petitioner/plaintiff to adduce his evidence and the case
was listed on 04.11.2022. Further, on 04.11.2022, the petitioner/plaintiff
filed his attendance through lawyer and filed a petition for time to
adduce his evidence which has been rejected and petitioner/plaintiff
evidence has been closed and case has been fixed for defendant's
evidence.
4. Learned counsel for the petitioner/plaintiff further submits that
on 14.12.2022, the petitioner/plaintiff filed attendance through lawyer
along with a petition to recall the order dated 04.11.2022 with a copy of
petition served upon the respondent/defendant and sufficient
explanation and reasons has been given in the recall petition dated
14.12.2022 explaining therein that the petitioner could not examine his
next witness in this case due to medication and treatment of his brother-
in-law who was suffering from various disease and heart problem and
this fact was pleaded before the court below but the same was not
considered. It is further submitted that petitioner/plaintiff is still ready
to examine the witness of agreement and produce other documents. In
the ends of justice, the impugned order is fit to be set aside provided
opportunity to the petitioner to lead his evidence.
5. On the other hand, learned counsel for the
respondent/defendant has raised serious objection and submitted that
sufficient opportunity has also been provided by learned trial court to
the petitioner/plaintiff but he willfully failed to adduce his evidence
and examine the witness. Hence, this civil miscellaneous petition has no
merits and fit to be dismissed.
6. Considering the aforesaid factual background of the case and
also in view of the facts that only petitioner/plaintiff has been examined
to substantiate his case and other vital witness have to be examined, I
feel inclined to allowed this civil miscellaneous petition subject to
payment of cost of Rs.5,000/- by the petitioner/plaintiff to the
respondent/defendant.
7. Petitioner is also directed to adduce of his evidence within two
months from the date of receipt of this order before the concerned trial
court, failing which, no other opportunity shall be given.
8. In view of the above observations, this civil miscellaneous
petition is allowed.
(Pradeep Kumar Srivastava, J.)
Pappu/N.A.F.R.
