IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.193 of 2007 The Union of India through Dharambir Kumar son of Shri Dwarika Prasad, at present posted as Executive Engineer (C) B.S.N.L. Civil Division, Muzaffarpur at Company Bagh, P.S./ Town and District Muzaffarpur. ……………………………………Defendant-Petitioner. Versus Raju Paskal son of Shri F.Paskal, resident of J/10 P.C. Colony, Kankarbagh, P.S. Kankarbagh, District Patna…………………………………………….Plaintiff-Opposite party. For the petitioner : Mr. Amar Nath Singh, Advocate. For the opposite party : M/s Satish Kumar Sinha and Ajay Kumar Singh, Advocates. ----------- 06/ 11.08.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. 2. This civil revision is being finally heard at this stage itself at the instance of both the parties. 3. This civil revision has been filed by the sole defendant-petitioner challenging order dated 16.11.2006 by which the learned Subordinate Judge-III, Muzaffarpur rejected his petition dated 09.10.2006 for recall of order dated 13.09.2006 by which PW.1 was discharged after examination-in-chief without cross-examination in Title Suit No.55 of 1991. 4. The aforesaid title suit was filed by the sole plaintiff-opposite party for declaration that order dated 07.01.1991 by which the contract of the plaintiff was rescinded and the order for heavy compensation by calling fresh tender were illegal and void. It transpires that in the said suit the sole defendant-petitioner appeared, filed his written statement, whereafter issues were 2 framed and evidence of the plaintiff started. 5. It further transpires that PW.1 was produced by the plaintiff on 13.09.2006 when his examination-in-chief was filed, but due to non-appearance of anyone on behalf of the defendant, the said witness was discharged without cross- examination. Thereafter, the case was fixed on 18.09.2006 when the defendant took adjournment for filing civil revision against the said order dated 13.09.2006, but instead of filing a civil revision he filed a petition on 09.10.2006 in the court below itself for recall of order dated 13.09.2006, which was rejected by the learned court below vide its impugned order dated 16.11.2006. 6. From the averments made by learned counsel for the parties as well as the materials on record, including the orders passed by the learned court below it is quite apparent that the plaintiff does not want to lead any further evidence after deposition of PW.1. It is also not in dispute that the evidence of the defendant is yet to start. 7. However the matter in dispute is that whether order dated 13.09.2006 is fit to be recalled. The plea taken by the defendant-petitioner is that his counsel Sri Shailendra Kumar was ill and had gone to Delhi for treatment but the plaintiff-opposite party had shown that the said Sri Shailendra Kumar was never a counsel for the defendant. Furthermore, it is not in dispute that the plaintiff filed an affidavit regarding the evidence of PW.1, who was examined in court on that date itself and time was granted to 3 the defendant to cross-examine him and thereafter the case was posted for cross-examination of PW.1 on 28.08.2006 and 11.09.2006 but the defendant did not cross-examine him. It further transpires that on 13.09.2006 when the case was concluded, a petition for further adjournment was filed on behalf of the defendant, which was rejected when no one appeared in the court on that date. 8. Even assuming that Sri Shailendra Kumar was earlier not a lawyer for the defendant, but a party in the civil court may change its lawyer at any given time, hence when such plea was taken by the defendant, this court feels that at least a last chance should have been given to the defendant for the said purpose. 9. In the said circumstances, one more chance must be given to the defendant to cross-examine the sole witness of the plaintiff. The learned court below is directed to fix a date in the first fortnight of September, 2009 on which date PW.1, who is the plaintiff himself should appear in court for his cross-examination and on that date the defendant must cross-examine him without seeking any adjournment and must complete the cross- examination on the same date. If the defendant does not avail this last opportunity he shall not be given any further chance to cross- examine PW.1. Immediately thereafter, the learned court below must direct the defendant to start his evidence which must be concluded within a fortnight after the Dipawali Vacation, 4 whereafter the arguments of both the parties must be directed to start which must be concluded within one month thereafter. 10. This schedule has to be strictly followed, as this court feels that the suit has unnecessarily been lingered for about 18 years. Accordingly, this civil revision is allowed and the impugned order is set aside with the aforesaid directions. However, this order will be subject to cost of Rs.5,000.00 to be paid by the defendant-petitioner to the plaintiff-opposite party within one month from today. harish/ ( S. N. Hussain, J. )