IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No:161 of 2010 Date of decision: 15.11.2010 Ved Pal Prashar .....Petitioner. Versus Satya Pal Bansal .....Respondent. Coram The Hon'ble Mr. Justice Deepak Gupta, J. 1 Whether approved for reporting? No For the petitioner: Mr.Anup Rattan, Advocate. For the respondent: Mr.P.S.Goverdhan, Advocate. Deepak Gupta, J (Oral). By means of this petition, the petitioner has challenged the order dated 27.4.2010 whereby the application filed by the defendant to examine some other witness in place of Sh.Khem Raj was rejected. Briefly stated the facts of the case are that the respondent (hereinafter referred to as the ‘plaintiff’ filed a suit for possession against the present petitioner (hereinafter referred to as the ‘defendant’). A perusal of the file shows that the defendant has delayed the case at every stage. On 27.11.2007, evidence of the plaintiff was closed. Thereafter, the matter was listed on 8.4.2008 for recording the statements Whether the reports of the local papers may be allowed to see the judgment? 2 of the defendant’s witnesses. Though the defendant’s witnesses were served, they were not present and the matter was adjourned to 10.6.2008. Thereafter, no steps were taken to summon the witnesses and the matter was adjourned for 28.8.2008 as last opportunity. On 28.8.2008, though three witnesses were present, only one Sh.Khem Raj was examined and affidavit of other witnesses were filed. Thereafter, the case was adjourned to 21.10.2008 on which date the defendant filed an application under Order 8 Rule 1-A(3), CPC for placing on record certain documents. I fail to understand why when the documents were being placed on record at the very same time, the defendant did not make a request that a DW will have to be re-examined to prove some of these documents. This application was allowed on 25.11.2008. Thereafter, the case was fixed for the evidence of the defendant for 19.3.2009. On 19.3.2009, when two witnesses were present, the counsel for the plaintiff made a request for adjournment. Thereafter, the matter was listed on 19.5.2009 and then on 28.7.2009. Finally, part of the evidence of the defendant was recorded on 1.9.2009 and the case was fixed for remaining evidence on 27.10.2009. On the said date, the defendant filed an application to summon one Sh.Raj Kumar Kalia. This application was allowed since it was 3 not opposed by the plaintiff. On 10.12.2009, the defendant requested for adjournment on the ground that his counsel is not present. On 7.1.2009, Sh.Raj Kumar Kalia was examined and another opportunity was sought to summon more evidence. As an exceptional case, one last opportunity was given and on that date, an application was filed to recall Khem Raj to prove certain documents which had been filed in Court as far back as November, 2008. The records of the above case clearly shows that the defendant had been trying to prolong and delay the proceedings on one pretext or the other. As observed above, once some documents were being filed, at the same time, a request should have been made that such and such witnesses are required to be re-examined or examined to prove such documents. No party can be allowed to move such application in driblets. However, the learned Trial Court still accepted the plea of the defendant and permitted him to recall Khem Raj. Now, it is prayed that Khem Raj has taken premature retirement and has settled in Uttrakhand and as such, the plaintiff be permitted to re-summon some other witness from the Cantonment Board, Kasauli to prove the documents. This application has been dis-allowed by the learned Trial Court on the ground that since last opportunity was granted to the 4 defendant, he cannot be granted any further date. There is no manner of doubt that the record clearly evidences the fact that the defendant has on one pretext or the other been delaying the matter. At the same time, it is a fact that after the application to re-summon Khem Raj was allowed, only one date was given. True it is, that the defendant should have first found out whether Khem Raj is still in service or not, but the fact is that Khem Raj is not in service. Since the documents sought to be proved can be proved through Office Superintendent, Cantonment Board, Kasauli, one last and final opportunity is granted to the defendant to produce such witness subject to the payment of Rs.3000/- as costs. The parties through their counsel are directed to appear before the learned Trial Court alongwith a copy of this order on 6.12.2010. The learned Trial Court shall fix the case for remaining evidence of the defendant in the week commencing 20.12.2010. It is made clear that other than the Office Superintendent, Cantonment Board, Kasauli, the defendant shall not be permitted to examine any other witness and this witness shall also be examined only to prove the documents mentioned in the application. The learned Trial Court is directed to dispose of the Civil Suit as early as possible and in any event not later than 31st March, 2011. In case 5 costs are not paid on the next date, this petition shall be deemed to have been dismissed. November 15, 2010 (Deepak Gupta), J. (m)