Angole Bharath Bhushan vs Mirza Younus Baig
2021 Latest Caselaw 4346 Tel

           THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

        CIVIL REVISION PETITION Nos.881 and 884 of 2021

COMMON ORDER:


        Both these revisions are filed aggrieved by separate docket

orders dated 22.03.2021 dismissing in I.A.No.32 of 2021 and

I.A.No.33 of 2021 in O.S.No.220 of 2014 by the Senior Civil Judge,

Nizamabad.


2.      The case of the respondent/plaintiff is that he was falsely

implicated in Cr.No.242 of 2010 registered for the offences under

Sections 290, 324 and 506 IPC before the IV Town Police Station,

Nizamabad. After investigation, charge sheet was filed and the case

was numbered as C.C.No.25 of 2011 and tried before the I Additional

Judicial First Class Magistrate, Nizamabad. The matter was transferred

to the Special Mobile Court, Nizamabad and renumbered as CC.No.322

of 2012. After considering the oral and documentary evidence, the

respondent/plaintiff was acquitted vide judgment dated 16.09.2013.

The petitioner/defendant also indulged in acts of filing several false

cases against the respondent/plaintiff. Hence, the respondent/plaintiff

filed a suit in O.S.No.220 of 2014 before the Principal District Judge,

Nizamabad, seeking damages of Rs.5,00,000/- for malicious

prosecution. Written statement was filed by the petitioner/defendant

No.1.

3. It is further submitted that I.A.No.32 of 2021 was filed by the

petitioner/defendant for reopening the defendant side evidence to

adduce further evidence, which was closed on 04.02.2021. I.A.No.33

of 2021 was filed to take on record the evidence of D.W.1 by setting

aside the eschewal of evidence dated 11.03.2020 and allow to proceed

with the case. Two separate docket orders were passed by the Court

below dismissing both the applications on 22.03.2021.

4. In the affidavit filed in support of the aforesaid two applications,

the petitioner/defendant stated that due to COVID-19 pandemic

situation he could not contact his advocate and could not produce

witnesses. His advocate informed him that he is busy in other Courts

and in such circumstances, he could not produce evidence. However,

he is now ready to adduce evidence and complete his side evidence.

5. The impugned orders were passed giving a finding that the

defendant failed to adduce to evidence from 21.08.2019 and despite

several conditional orders passed and costs imposed, the

petitioner/defendant failed to appear and as such his chief evidence

was eschewed on 11.03.2020. The matter was posted for further

evidence of the defendants and since there was no representation, his

further evidence was closed and the matter was posted for arguments.

The same reflected that the petitioner/defendant was not appearing

regularly to adduce his evidence and as such, the Court below

eschewed the evidence of D.W.1. The Court below also noted that

regular Court started functioning from 06.01.2021 and the suit was

posted from time to time from 06.01.2021 to 21.01.2021 and later to

04.02.2021. However, the defendant did not choose to lead further

evidence. The instant applications came to be filed on 10.02.2021.

Holding that the petitioner/defendant intended to delay the

proceedings and did not show any valid grounds to produce and

complete his evidence, the applications were dismissed.

5. It is a known fact that the physical Courts were closed in the

third week of March 2020 and COVID-19 SOP protocols were

implemented from time to time. It cannot be denied that the litigants

and also the counsel appearing for them were put to lot of

inconvenience. Though the Court below pointed out that the regular

Court started functioning from 06.01.2021, still, it cannot be denied

that there were COVID protocols and SOPs implemented from time to

time and the Courts below were not fully functional.

6. Taking into consideration the COVID-19 pandemic situation and

first and second waves of COVID infections, during which time there

was loss of lives and also vaccination drive being undertaken by the

Government and private agencies, this Court is of the view that

reasonable opportunity has to be given to the petitioner to adduce

evidence.

7. In the result, the civil revision petitions are allowed. However,

taking into account the delay being caused by the petitioner, costs of

Rs.10,000/- (Rupees Ten Thousand only) is imposed in each CRP

payable to the plaintiff through his counsel appearing in the Court

below within a period of one week from the date of receipt a copy of

this order. The petitioner/defendant shall appear before the Court

below on the next date on which the suit is posted and shall give list of

all the witnesses he is proposing to examine. The suit shall be

disposed of within a period of one month from the date of receipt of a

copy of this order.

Pending miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________ B. VIJAYSEN REDDY, J December 15, 2021 DSK