IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.285 of 2009 Date of decision:-20.03.2009. Kamla and another ...Petitioners Versus Badri Parsad and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Sukhdeep Parmar, Advocate for the petitioners. Mr. Arun Singal, Advocate for respondents No.1 to 4. JASWANT SINGH J.(Oral) Petitioners-defendants No.1 and 2 by filing this revision petition under Article 227 of the Constitution of India have prayed for setting aside the order dated 13.12.2008 passed by learned Additional Civil Judge (Senior Division) Panipat whereby their defence has been closed on account of last opportunity having not been availed and cost not paid. Notice of motion was issued and the respondents have put in appearance through their counsel. It is apparent from the record that in the suit for declaration, filed by the respondents-plaintiffs, that they are owners in possession of the house in question, the evidence of the respondents-plaintiffs was closed on 20.02.2008 after giving five effective opportunities. Thereafter, the case was fixed for 5th April, 2008 for the petitioners-defendants evidence. On 5th April, 2008 no DW was present and the case was adjourned to 31.5.2008 and last opportunity was granted for leading the defendants' evidence. On 31.5.2008 also case was adjourned to 13.12.2008 as another last opportunity subject to payment of Rs.200/- as costs. Vide impugned order dated 13.12.2008 the evidence was closed by court C.R. No.285 of 2009 -2- order since no DW was present and the cost was also not paid. Learned counsel for the petitioner has submitted that their counsel Shri Bijender Gautam, Advocate was convicted in a case under Section 304-B IPC and is in judicial custody and is undergoing imprisonment since 20.02.2008. Proxy counsel namely Shri Kuldeep Rohila, from the office of Shri Bijender Gautam, Advocate, was representing the petitioners and on 13.12.2008 he also met with an accident and did not come to court, therefore, he could not be present at the time the case was called for hearing, whereas the petitioners-defendants, who are rustic and old ladies kept on waiting for Shri Rohila in the chamber of the aforesaid Shri Bijender Gautam and therefore, they also could not appear at the time of calling of the case nor the cost could be paid. Learned counsel for the respondents points out that Shri Bijender Gautam has been marked present for the petitioners-defendants. However, he does not dispute the factum of the imprisonment of the said counsel. After hearing learned counsel for the parties, this court is satisfied that petitioners-defendants have shown sufficient cause for the inadvertance lapse and therefore, to advance the cause of justice, they deserve one opportunity for leading their entire evidence. Accordingly, the impugned order dated 13.12.2008 is set aside. Learned Trial Court is directed to grant one last effective opportunity to the petitioners-defendants to lead their entire evidence at their own responsibility on the next date or the date to be fixed by learned Trial Court subject to payment of Rs.2000/- as costs to plaintiffs in equal shares. Petition is allowed in the above terms. However, with regard to the casual manner in which the Presiding Officer namely Ms. Rajni Yadav, Additional Civil Judge (Senior Division) Panipat marked Mr. Bijender Gautam, Advocate (who is undergoing imprisonment in a case under Section 304-B IPC since 20.2.2008) present as counsel for the defendants in the proceedings dated 19.1.2009 (as well as on previous dates) held C.R. No.285 of 2009 -3- in Civil Suit No.419/06 Badri Prasad and others v. Kamla and others, the Registry is directed, on administrative side, to call for the explanation of the Presiding Officer alongwith report of the learned District Judge, Karnal and to place the same before the Hon'ble Administrative Judge of Sessions Division, Karnal. March 20, 2009 (JASWANT SINGH) vj JUDGE