Jammu & Kashmir High Court
Kewal Kumar vs Kewal Kumar & Anr. on 24 October, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
C. Rev. No. 19/2017
MP No. 01/2017
Date of decision: 24.10.2017
_______________________________________________________________
Kewal Kumar Vs. Kewal Kumar & anr.
________________________________________________________________
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing Counsel:
For petitioner(s) : Mr. K.S.Johal, Sr. Advocate with
Mr. J.I. Balwan, Advocate.
For respondent(s) : Mr. M.R.Qureshi, Advocate.
_______________________________________________________________
(i) Whether to be reported in Press, Journal/Media : Yes/No
(ii) Whether to be reported in Journal/Digest : Yes/No This petition under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India and Section 104 of the State Constitution is directed against order dated 09.06.2017, whereby the learned trial court in a suit filed by the petitioner has closed the petitioner's evidence.
Heard Mr. K.S.Johal, learned Senior Advocate, appearing on behalf of the petitioner and Mr. M. R. Qureshi, learned counsel appearing on behalf of the respondents.
Quashing of the impugned order is sought on the ground that the trial court had directed recording of the statement of the petitioner (plaintiff) through affidavit. His chief examination was recorded by way of an affidavit. His C.Rev. No.19/2017 Page 1 of 3 statement was to be recorded first in terms of Order XVIII, Rule 3-A CPC. Learned trial court, however, closed the petitioner's evidence without appreciating this legal position. Contextually, it is contended that the trial court did not agree with the petitioner's request for deferring his statement till recording of the statements of his witnesses. In addition, it is contended that the petitioner had been regularly appearing in the court though he could not appear on 09.06.2017.
Learned Senior Advocate, appearing on behalf of the petitioner, submitted that the impugned order suffers from patent irregularity as petitioner's evidence has been closed without first completing the petitioner's statement. Mr. Qureshi, on the other hand, has supported the impugned order.
Minutes recorded by the learned trial court would show as if the petitioner was all set to delay the leading of his evidence in the case. Some important aspects have been noticed. Issues in the case were framed far back in the year 2002. An additional issue was framed on 15.11.2002, which came to be decided on 17.08.2005. After that petitioner (plaintiff) seems to have filed an application for deferring his own statement till recording of the evidence of his witnesses in terms of XVIII Rule 3-A CPC. This application was allowed by the trial court on 29.10.2013 and in that petitioner is not correct in saying that petitioner's prayer in this regard was not granted. The petitioner does not seem to have filed list of the witnesses to be produced by him or sought summoning of his witnesses through court nor was any witness produced by him in spite of repeated adjournments for years together. On 21.01.2015, the petitioner was asked by the trial court to ensure the production of his witnesses. Last and final opportunity in this regard was granted on 28.05.2016. Another opportunity was granted on 11.08.2016. On 03.12.2016 petitioner produced his affidavit seemingly as his statement in chief. No witness was produced in spite of C.Rev. No.19/2017 Page 2 of 3 repeated opportunities after that till the evidence came to be closed vide impugned order dated 09.06.2017.
In aforementioned backdrop, no illegality can be said to have been committed by the learned trial court and in that impugned order does not deserve any indulgence by this court. Nonetheless, it would be in fitness of the things that the petitioner gets one more chance, though subject to payment of costs, to produce his witness at his own responsibility in order to avoid unceremonial end of the decades old litigation. Two more opportunities are thus granted, subject to payment of Rs.5000/- as costs by him to the respondents (defendants).
It is thus ordered that the parties shall cause their appearance before the trial court on 09.11.2017, when the trial court shall fix a date granting first opportunity to the petitioner to produce his witnesses, which shall be followed by another opportunity, if sought by the petitioner. On the dates so fixed by the trial court it shall be the responsibility of the petitioner to produce his witnesses at his own responsibility. It shall, however, be open for the trial court to grant another opportunity, in case evidence of a witness in attendance on the second date is not recorded for any reason, whatsoever.
Record of the trial court be remitted back along with copy of this order.
Disposed of.
(Janak Raj Kotwal) Judge Jammu:
24.10.2017 Pawan Chopra C.Rev. No.19/2017 Page 3 of 3