CM(M) No.141/2008 Page 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 13th May, 2008 + CM(M) No.141/2008 & CM No.1483/2008 # SHASHI SHANKAR SHARMA & ORS. ..... Petitioner ! Through: Mr. D.R. Bhatia, Advocate Versus $ PRAN NATH SHARMA & ANR. ..... Respondent ^ Through: Mr. Vijay Kinger, Advocate for respondents No.1 & 2. CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the reporters of local papers may be allowed to see the judgment? 2. Whether the judgment be referred to the reporter or not? 3. Whether the judgment should be reported in the digest? Veena Birbal, J. (ORAL) 1. By way of present petition, petitioners have challenged the impugned order dated 11.1.2008 by which learned ADJ has rejected review application seeking review of order dated 30.11.2007 closing evidence of petitioners/defendants. 2. A suit for partition and rendition of account has been filed by respondents/plaintiffs before the learned ADJ. It is stated that the evidence of the respondents/plaintiffs has already been concluded. For the first time matter was listed for evidence of petitioners/defendants on 4.1.2007. Thereafter petitioners/defendants have already examined four witnesses. It CM(M) No.141/2008 Page 2 of 4 is further stated that when the matter was fixed on 30.11.2007 for petitioners/defendants evidence, petitioners could not produce its witness Shri Manoj Kumar as the said witness was avoiding to appear before the court for his evidence. The said fact was recorded by the learned ADJ and despite that evidence of the petitioners/defendants was closed on that day and the matter was adjourned to 11.1.2008 for final arguments. On that day review application seeking review of order dated 30.11.2007 was also rejected. The aforesaid witness is an attesting witness to the will. It is stated that the petitioners/defendants could not produce the witness Sh. Manoj Kumar due to the reasons mentioned above and the learned ADJ vide impugned order dated 30.11.2007 closed the evidence of petitioners/defendants. Thereafter, application for review was filed which was also dismissed vide order dated 11.1.2008. Aggrieved with the same present petition is filed. 3. Counsel for petitioners/defendants has contended that learned ADJ has arbitrarily closed the evidence of the petitioners/defendants without affording reasonable opportunity to lead their evidence. It is contended that there is no delay on the part of the petitioners/defendants in concluding their evidence. It is contended that impugned order has serious consequences upon petitioners/defendants inasmuch as they will not be in a position to prove their stand. Learned counsel CM(M) No.141/2008 Page 3 of 4 further contended that there is only one witness i.e. Shri Y.L. Sachdeva, Advocate which is to be examined by petitioners/defendants. If the impugned order is not set aside, it will cause great prejudice to them. 4. Learned counsel for respondents has not opposed the request made by the counsel for petitioners/defendants except for payment of costs. Learned counsel submits that he has no objection if one opportunity is given to them to produce their witness Shri Y.L. Sachdeva, Advocate. 5. I have heard counsel for parties. 6. As noted above one witness has to be produced by petitioners/defendants. The impugned order has serious consequences upon petitioners/defendants as the same is depriving them of having a fair opportunity to prove their stand. In the interest of justice and for effective adjudication of matter on merits as well as no objection given by the counsel for respondents/plaintiffs, impugned order dated 11.1.2008 is set aside and in consequence thereof order dated 30.11.2007 is also set aside and one more opportunity is given to the petitioners/defendants to produce its witness Shri Y.L. Sachdeva, Advocate, subject to payment of costs of Rs.4,000/- to respondents/plaintiffs. It is stated that next date before the trial court is 23.5.2008. Petitioners/defendants to ensure that CM(M) No.141/2008 Page 4 of 4 examination-in-chief of said witness by way of affidavit is filed on the said date. The said witness be cross-examined on the said date or any other date as per the convenience of the court. 7. Petition stands disposed of accordingly. Copy of the order be sent to learned trial court. VEENA BIRBAL, J MAY 13, 2008 srb