Court No. - 9
Case :- CIVIL REVISION No. - 308 of 2015 Revisionist :- Ganga Ram Opposite Party :- Smt. Poonam Kuntal Counsel for Revisionist :- Rahul Sahai Counsel for Opposite Party :- Ashish Kumar Srivastava,Deepak Kumar Kulshrestha
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the parties.
This is a defendant's revision, challenging the order dated 06.08.2015, passed by the Additional Civil Judge (Senior Division), Mathura in Original Suit No. 29 of 2007, whereby Application No. 62 Ga filed by the defendant-revisionist for recall of the order dated 30.10.2012 has been dismissed.
The order dated 30.10.2012 reads as follows:-
"Case called out. Plaintiff counsel present. Defendant not present.
Heard and perused the file none present for defendant court order dated 29.08.2012 not complied with hence court order dated 25.05.2012 is effective.
Fixing 05.12.2012 for ex-parte order."
Earlier, on 25.05.2012, the defendant absented and failed to cross-examine PW1, who was present in Court. The Court, therefore, directed that the opportunity to cross-examine the PW1 was closed fixing 27.07.2012 for the remainder of the plaintiff's evidence.
On the next date, namely 27.07.2012, the defendant-revisionist filed an application for recall of the order dated 25.05.2012.
The Court accepting the explanation of the defendant- revisionist that he could not appear on 25.05.2012, on account of his father's death, allowed the recall application on payment of Rs. 200 as costs and fixed 27.09.2012 for the cross- examination of PW1.
On the next date fixed, namely 27.09.2012, the defendant- revisionist sought an adjournment and the case was adjourned for 30.10.2012, on which date the defendant absented.
The Court finding that the order dated 29.08.2012 had not been complied with, meaning thereby, that the costs had not been paid, held the order dated 25.05.2012 to be operative and effective.
It is this order, which was sought to be recalled, which recall application has been rejected by the impugned order.
The contention of counsel for the revisionist is that the Court has proceeded ex-parte, has heard ex-parte arguments and fixed a date for delivery of judgment. This could not have been done because, in effect, the order was only that his opportunity to cross-examine PW1 had been closed. The impugned order is, therefore, liable to be set aside and the matter is liable to be decided after hearing the parties and after affording the revisionist to adduce evidence.
Counsel appearing for the opposite party has supported the impugned order. He has submitted that after the order dated 30.10.2012 was passed, the revisionist had appeared on various dates.
On 26.07.2013, the defendant-revisionist again absented and, therefore, the Court fixed 17.08.2013 for ex-parte arguments. The order sheet of 14.03.2018 records that the parties are present and have been heard and 27.03.2014 was fixed for judgment. On the date fixed for delivery of judgment, the application no. 62 Ga, for recall, was filed. The defendant- revisionist has all along being adopting dilatory tactics. The order impugned therefore, is liable to be sustained.
I have considered the submissions made by counsel for the parties and perused the record.
It is no doubt true that the import of the order dated 30.10.2012, which was sought to be recalled, at the instance of the revisionist, is only that the defendants right to cross-examine the PW1 had been closed finally.
Although, the order sheet does not say so, in as many words, but it appears that the defendant had thereafter being appearing in the case off and on. However, there is no specific order whereby the Court expressed its intention to proceed ex-parte against the defendant. At the same time such intention can be inferred from the perusal of the order sheet. In any case, it is clear that the application for recall of the order dated 30.10.2012 was filed after judgment had been reserved.
This Court fails to understand as to how, despite having appeared on various dates, the defendant-revisionist was not aware of the order dated 30.10.2012, as is his case in this revision.
Under the circumstances, however, this Court is of the considered opinion that one last opportunity be given to the defendant-revisionist to adduce evidence and to make his submissions. However, this opportunity is liable to be given to him only on payment of heavy cost, as his conduct in the proceedings does not appear to be bonafide from a perusal of the order sheet, available on record.
The revision is accordingly allowed subject to the revisionist depositing a sum of Rs. 10,000/- as costs before the trial court. Along with the costs, the revisionist shall also file the examination in chief of his witnesses, on affidavit.
If the aforesaid conditions are complied with, the court below shall permit the plaintiff to cross-examine the defence witness and thereafter proceed with the matter expeditiously, without granting any adjournment to any of the parties.
In case, any of the conditions specified above, are not complied with, within the time granted, the revisionist-defendant shall not be entitled to get any benefit of this order and the trial court will be free to decide the matter, forthwith, treating this order to be non-est.
Order Date :- 31.8.2018 Mayank Digitally signed by ANJANI KUMAR MISHRA Date: 2018.09.01 11:19:52 IST Reason: Document Owner Location: High Court of Judicature at Allahabad