^ ^ B8ff'"sl"w%ifi?N &)'^ HIGH COURT OF CHHATTISGARH AT BIIASPUR DIVISION BENCH: ^> HON»BLE8HRI T. P. 8HARMA & H(Mff*BLB SHRI R.L. JHANWAR. JJ. PIRST APPEAL No. 170/2005 APPBLLANTS 1 M/s. Jaia Bricks Pvt. Ltd. 36 Heera DEFENDATNS Market, New Bus Stand, Pandri Raipiir 2 Shri Suresh Jaia, aged about 42 years, S/o Shri Latturam Agrawal, R/o Choube Colony, Raipur, Tahsil 8& District Raipur, Director M/s, Jaia Bricks Pvt Ltd. Raipur (CG) Versus RBSPONDENT Smt. Neeta Agrawal, aged about 37 years, PLAINTIFF w/o Shri Om Prakash Agrawalm, R/o Geetanjati Nagar, Raipur, Tahsil & District Raipur (CG) APPLICATION U/S 96 OF THB CODE OF CIVIL PROCBDURB Paresent: Shri Kishore Bhaduri and Shri Pawaa Kesharwani, counsel for fhe appellan.ts. Shri B.P, Sharma, counsel for the respondent. ORAL - JUDGMBNT (Passed on 7th July, 2010) The foUowmg judgment of the Court was passed by T. P. Sharma, J. 1. By fhis appeal, appeUaiits/defendaats have chatlenged fhe iUegaUty and propriety of fhe judgment and decree dated 7.7.2005, passed by the 5th Additional Distnct ^ 3^,_..^^ Judge, Raipur (CG) in C.S. No. 16-B of 2003, decrcemg fhe suit for recovery agaiast fhe appeUaats/defendaats, The judgment aad decree is challenged on fhe ground that without providmg reasonable opportunity of adducmg evidence to the appeUaats/defendaats, Court below has closed fhe nght of adduciag evidence of fhe appeUaats ond decreed fhe suit aad fhereby committed iUegaUty. As per pleadings for disposal of tihis appeal are that the rcspondent/plaiatiff has filed a suit for rccoveiy of Rs.5,40,000/- against fhe appeUaats/defendaats 011 the basis of a Cheque. Prcsent appellaats/defendants have contested fhe case by jSliag a written statement. After closmg fhe evidence of respondent/plamtiff, opporturdty to adduce fhe evidence has been provided to fhe appellaats/defendants, but on account of failure to produce tih.e evidence aiid even examiaing fheinselves as witaesses, Court below has closed the opportunily of adduciag evidence of fhe appeUaats/defendants vide order dated 25.6.2005 and after heariag the pardes, decreed fhe siiit ia favour of fhe respondent, We have heard Shri Kishore Bhaduri, learaed counsel for fhe appeUants aad Shri B.P. Sharma, learaed counsel for the respondent, perused ftie judgment aad decrce impugned and record offhe Courtbelow. Learaed counsel for fhe appeUants/defendaiits fau-ly admitted that ia fhe present case, Coiirt below has provided opportuiiity of hearing to fhe parties, but present appeUants/defendaats have not adduced aay evidence ia support of fheir claini aad on 25.6.2005, opportuiuty of adducing evidence of the appeUants has been denied by fhe Court. He further submitted fhat in .f^^," ^'^' '\ '^\ ^' :^ • •:'. ?^- V. \ 'K; -) 6. 8. fhe absence gf opportunity of adducmg evidence, Court below has eironeously set ofif fhe defence of the appellaats/ defendaats. On fhe other h^iid, leamed counsel for fhe respondent veheinenUy opposed fhe petition and submitted fhat aa aoiple opportunity has been provided to fhe appellaats/defendants for adduciag fheir evidence, but the appeUants have not adduced their evidence on tibie date fixed for evidence aad fhey fhemselves have tailed to examiae fhem as witnesses. Record of the Court below revealed fhat on 25,6.2005, case was fixed for defendaats/appeUants evidence but on fhat date, aa application for adjoumment was filed after dismissal of fh.e sacae. The appeUant Suresh Jam has refused to give evidence on account of his iUness. This is a siiit for recoveiy of Rs.5,40,000/- aad decree for recovery has been granted agaiast fhe appellaats/defendants, Defibaitely, aa opportunity was provided to fhe appeUants for adducmg fheir evidence, but ou 25.6.2005 on account of iUness of appellant No,2, he was not in a position to give his evidence or fhe evidence of ofher witaesses, who were not present In fhese circumstaaces, reasonable opportunity should have been given subject to heayy cost, but iastead of providiag opportunity, Court below has closed fhe evidence aad fhereby cominitted iUegaUty, Consequently, the appeal is allowed. Judgment aad decree is hereby set aside subject to cost of Rs.5000/- payable wifhm 30 days from today on fhe rcspondent The case is reimtted back to flie Court below for providmg opportiinity of adducing evidence aad after hearing the E r. r 4 ^50 case, decide it afresh. Appellaats are directed to produce ftieir whole evidence. 9. Pardes are directed to rexaaui present beforc the Court below on 9th August, 2010 aad Court below shaU provide aa opportunity of adducing evidence on any date. The appeUaiits arc under obUgation to present and exaiiiiae aU the witaesses on such date as inay be given by fhe Court below. 10. Parties shaU bear ftieir own cost. Advocates' fee as per schedule. 11, Decree be drawn accordirigly. /^VwvtTP^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge