Civil Revision No. 1365 of 2010 (1) In the High Court of Punjab & Haryana at Chandigarh Civil Revision No. 1365 of 2010 (O&M) Date of decision : 30.3.2010 Ramesh Kumar ..... Petitioner vs Surinder Kumar and another ..... Respondents Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Harish Goyal, Advocate, for the petitioner. Mr. Atul Jain, Advocate, for the respondents. Rajesh Bindal J. Prayer in the present petition filed under Article 227 of the Constitution of India is for setting aside order dated 2.2.2010 passed by the learned court below, whereby evidence of the petitioner-plaintiff was closed by order of the court. The proceedings in the present case arise out of a suit for recovery of Rs. 69,300/- filed by the petitioner against the respondents. Learned counsel for the petitioner submitted that the suit was filed by the plaintiff on 19.5.2007. On 9.9.2008 two PWs were examined. One of them was also cross-examined and the case was adjourned to 9.12.2008 for cross- examination of other witness. On 9.12.2008, PW Som Nath, Record Keeper produced the record but the other PW Ramesh Kumar had not produced the record and the case was adjourned to 18.3.2009 for cross-examination of the PWs. The file was taken up on 17.3.2009, as the Presiding officer was to go on leave on 18.3.2009 and the case was fixed for 6.6.2009. On 6.6.2009, the petitioner could not come present due to illness of his wife and the case was adjourned to 18.7.2009. Thereafter on next two dates also, the petitioner could not come present. On 28.10.2009, the petitioner was lengthy cross-examined in another similar recovery suit pending between the same parties in the same court and the case was adjourned to 21.11.2009. Thereafter, the case was adjourned to 7.1.2010. However, the petitioner met with an accident on 4.1.2010 and by mentioning this fact, he sought his personal exemption which was allowed by the trial court and the case was adjourned to 2.2.2010. On the adjourned date also, the petitioner could not appear as the doctor had advised him rest. He has also annexed medical certificate as Annexure P-7. It was submitted that due to this reason, the petitioner could not present himself on the date fixed which resulted in passing of the Civil Revision No. 1365 of 2010 (2) impugned order on account of his non-appearance on the date fixed even costs could not be paid. It was further submitted that the petitioner is not to gain anything in delaying the proceedings in the suit filed by him for recovery. He prayed that in case one opportunity is granted, the petitioner will complete his entire evidence on the next date. On the other hand, learned counsel for the respondents submitted that aim of the petitioner is only to delay the proceedings. He has also not paid the costs imposed on 7.1.2010. He submitted that the order of the court below is perfectly right as number of opportunities had been granted to the petitioner to adduce evidence. Heard learned counsel for the parties. The facts submitted by the learned counsel for the parties are borne out from the record. Admittedly, on few dates the plaintiff is at fault for not producing the evidence. However, it is not only due to the fault of the petitioner the delay occurred in conclusion of trial. After the framing of issues when the case was fixed for evidence of the petitioner, the petitioner filed his affidavit but the case was adjourned for cross-examination. Thereafter, on one date the record was not produced by the official witness and on one date the Presiding officer was to go on leave. On the date when the impugned order was passed, the plaintiff/petitioner could not produce himself for the reason that he met with an accident on 4.1.2010 and the doctor had advised him for rest, which cannot be said to be intentional. Moreover, it is a suit for recovery filed by the petitioner and admittedly he cannot be said to be interested in delaying the proceedings. In view of the above facts and circumstances, while setting aside the impugned order dated 2.2.2010, closing the evidence of the petitioner, the learned court below is directed to grant one opportunity to the petitioner to present himself in court for his cross-examination as his affidavit is already on record. The same shall be subject to payment of Rs. 2,500/- as costs to the respondent in addition to the costs already imposed by the learned trial court. It is, however, made clear that no further opportunity shall be granted to the petitioner in case he fails to complete his entire evidence on the date already fixed. The revision petition is disposed of in the manner indicated above. Copy of the order be given dasti on payment of usual charges. 30.3.2010 ( Rajesh Bindal) vs. Judge