Balwinder Singh vs Sukhwinder Singh And Others
2022 Latest Caselaw 12112 P&H

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                  AT CHANDIGARH
120
                                               CR No. 4096 of 2022
                                               Date of Decision:23.09.2022

Balwinder Singh                                                   .....Petitioner
                      Vs
Sukhwinder Singh and another                                     ....Respondents

CORAM : HON'BLE MS.JUSTICE NIDHI GUPTA

Present:     Mr. Saurav Bhatia, Advocate,
             for the petitioner.

NIDHI GUPTA, J. (Oral)

By this Civil Revision Petition under Article 227 of the

Constitution of India, the petitioner assails the order dated 18.04.2022,

passed by the Court of learned Civil Judge (Jr. Divn.), District Shaheed

Bhagat Singh Nagar, in CS No. 860 of 2016 whereby the defence evidence

has been closed without affording the petitioner an opportunity to lead

evidence as DW3. Petitioner further prays for quashing of order dated

12.08.2022 (Annexure P-8), passed by the same Court, vide which the

petitioner's application for recalling of order dated 18.04.2022, has been

dismissed.

Brief facts of the case are that the petitioner is defendant no.3

in the Civil Suit no. 860 of 2016 filed by the present respondent No.1,

seeking permanent injunction.

Learned counsel for the petitioner states that his categorical

stand throughout has been that the plaintiff/respondent no.1 has filed the

present suit in collusion with defendant No.1, who are both actively

conniving against the present petitioner/defendant No.3.

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Learned counsel for the petitioner states that the

plaintiff/respondent no.1 started his evidence on 27.01.2017 and

continued till 30.09.2019, i.e.for a period of 2 years and 9 months and

took 29 opportunities to conclude his evidence.

In support, zimni orders have been appended as Annexure P-4.

Learned counsel for the petitioner/defendant No.3 fairly

admitted that the evidence on behalf of defendants was started on

30.10.2019, thereafter 12 opportunities were granted to lead evidence.

However, it is the grievance of the petitioner that he was never given an

opportunity by the Court below to lead his evidence and defence evidence

was closed vide order dated 18.04.2022, only after affording opportunities

to defendant No.1. Learned counsel states that the learned trial Court was

in error in closing the evidence of the petitioner as the defence of

defendant No.1 was necessary, for the petitioner to lead his evidence.

A perusal of the impugned order dated 12.08.2022, shows that

the learned Court below has noted as follows:-

"During these opportunities there was no request or averment by the defendant no.3 to the Court with respect to separate opportunities to be given to defendant no.3 and further it has never been stated that defendant no.1 and 3 have conflicting interest of each other."

Learned counsel assails the aforesaid finding of the Court

below as patently incorrect, and led me to the written statement filed by

the petitioner (Annexure P-3), before the Court below in the Civil Suit

where it has been categorical stated "that the suit is collusion between

plaintiff and defendant No.1"

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In paragraph No.1 of the aforesaid written statement it has

been stated "the present suit has been filed by the plaintiff in collusion

with defendant no.1 only to harass defendants No.2 and 3, as defendant

No.2 did not agree to sell or transfer her share to the plaintiff and

defendant no.1 for paltry consideration."

Learned counsel for the petitioner further relies upon two

judgments of this Court in Mohinder Singh vs. Mohinder Kaur and

others, 2017(2) RCR (Civil) 657 and Baldev Singh vs. Surinder Singh,

2001 (1) RCR (Civil) 434, where, in similar circumstances, this Court had

been pleased to grant relief in order to do substantial justice between the

parties.

After hearing learned counsel for the petitioner and on perusal

of the material available on file, as well as the factual and legal position

noted above, I am of the considered view that without calling the other

parties, as that will only prolong the case, the petitioner deserves to be

given at least one effective opportunity to lead/conclude his evidence.

In this regard I refer to judgment rendered by the Hon'ble

Supreme Court in "State of Punjab vs. Sham Lal Murari", 1976 AIR

(SC) 1177, wherein Their Lordships have been pleased to observe that

"the Rules of Procedure are handmade of justice and the Courts should not

deny the justice to the deserving litigants, as that would lead to the

miscarriage of justice - The Procedural Law is not be tyrant but a servant,

not an obstruction, but an aid to the justice delivery system. A liberal

approach is required to be taken in such matters."

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In view of the aforesaid position and the judgments referred to

hereinabove, the present petition is allowed and the impugned orders dated

18.04.2022 and 12.08.2022, are set aside.

The trial Court is directed to grant one effective opportunity to

the petitioner to produce his entire evidence. It shall be the responsibility

of the petitioner/defendant No.3 to produce his evidence on the date so

fixed by the trial Court. However, the petitioner is burdened with costs of

Rs.10,000/- to be paid to the opposite party.

Disposed of accordingly.

                                                      (NIDHI GUPTA)
September 23, 2022                                        JUDGE
dharamvir



            Whether speaking/reasoned     : YES/NO
            Whether Reportable             : YES/NO




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