9% HIGH COURT OF CHHATTISGARH AT BILASPUR S.B: NM Hon’ble Shri Prashant Kumar Mishra Writ Petition {227g No. 5824/2010 PETITIONER : Mohamed Kudritt Versus RESPONDENT : Mohamed Jabbar Ansari Aggearance: Shri A.N. Pandey, counsel for the petitioner. Shri SR. Sinha, counsel for the respondent. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA M ORAL ORDER (22. 1 1 .2010) I In a suit for eviction the learned trial court, by’the impugned order, has rejected defendant’s application under Order 17 Rule l of CPC and has closed his‘right to lead evidence. (2) The suit was filed sometimes in the month of February 2008. ‘The petitioner/defendant has filed his written statement in the month of February 2009. The plaintiff has already closed his evidence and the matter was hxed for recording the statement of witnesses of the defendant. On 3/09/2010 the plaintiE submitted some more documents which were taken on record and the defendant was granted last oppoltunity to lead evidence on 22/09/201 0. However, on his failnre to keep his witness present, th’e trial court refused to grant this application under Order 17 Rule 1 of CPC and has closed his levidence. The reason assigned in his application under Order 17 Rule l/ l l l l l l \ m V V "2:;‘75§/dy;fx.‘f t 9% (2’ 1 of CPC is that the counsel appearing for the defendant could not read the order sheet as he had gone to Jashpur and therefore process fee could not be paid to keep his witness present. The lawyer has taken the responsibility by mentioning in the application that it was his mistake and the client should not be penalised for the mistake of the counsel. (3) Learned counsel for the petitioner has reiterated the grounds mentioned in the petitioner’s application under Order 17 Rule 1 of CPC with further submission that the learned trial court should have considered the matter in a justice oriented approach and for the mistake of the counsel the petitioner should not have been penalised. On the other hand, learned counsel for the respondent would argue that inspite of being given last opportunity the defendant failed to produce his evidence and is trying to protract the litigation and thus the impugned order does not suffer from any illegality. (4) On perusal of the application under Order 17 Rule 1 of CPC which is signed by the petitioner as well as his counsel, it would appear that the counsel admits his mistake in not reading the order sheet and not complying the order passed by the trial court on 3/09/2010 regarding payment of process fee. (5) The suit is pending since February 2008. Thus, it is not a case \ , where the suit is pending for years together and the defendant has \ \ deliberately tried to delay the proceedings. Written statement itself \ (was filed in February 2009. In the given circumstances, it would be \ 1 H \ \ \ 90 ,3, unreasonable to close the petitioner’s evidence for the mistake of the 1awyer. If the impugned order is 'not interfered, the defendant may suEer a decree for eviction without submission of evidence. (6) This court is of the opinion that the petitioner deserves one more opportunity to lead evidence in the interest ofjustice subject to payment of cost. It is therefore directed that the petitioner shall produce his entire evidence on the next date of hearing to be fixed by the trial court and shall make payment of cost of Rs.1000/— to the plaintiff Within a period of one month from today. (7) The impugned order is set aside. The writ petition stands