HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 416/2010 (M/S) Kurban Ali. …Petitioner. Versus Sanjeev Kumar. …Respondent. Shri B.B. Sharma, Advocate for the petitioner. Shri Ajay Veer Pundir, Advocate for respondent. Dated: April 26, 2010 Hon’ble V.K. Bist, J. Present petition has been filed by the petitioner challenging the order dated 20.02.2010 passed by the Civil Judge (Sr. Div.), Roorkee, District Haridwar in Original Suit No. 64 of 2005 ‘Sanjeev Kumar vs. Kurban Ali’ whereby the adjournment application (paper No. 128- B) moved by the defendant/ petitioner was rejected and the order dated 12.03.2010 passed by the District Judge, Haridwar in Misc. Civil Case No. 108 of 2010 whereby the Misc. Civil Appeal was dismissed in limine. The petitioner has also sought a writ of mandamus directing the Trial Court to allow the petitioner to produce evidence and permit his counsel to cross-examine the witnesses produced by the plaintiff. 2. Brief facts, as enumerated from the record, are that the plaintiff (respondent in the instant petition) instituted an Original Suit No. 64 of 2005 before the Court of Civil Judge (Sr. Div.), Roorkee. During pendency of the said suit, the defendant/petitioner moved an adjournment application on 20.02.2010 (paper no. 128-B) (annexure no.1 to the writ petition), which was rejected. Against the rejection of adjournment application, the petitioner 2 preferred a Misc. Civil Appeal before the District Judge, Haridwar, which was also dismissed vide order dated 12.03.2010. 3. Learned counsel for the petitioner submitted that the suit was listed on 12.03.2010 before the Trial Court and again on 17.03.2010 arguments were heard ex-parte as the Advocates were abstaining from work, therefore 29.03.2010 was fixed by the Trial Court. The petitioner moved a transfer application in the said suit. He further submitted that vide the impugned order the opportunity to cross-examine the witnesses has been closed and the defendant/petitioner intends to produce witnesses in the O.S. 4. I have heard the learned counsel for the parties and examined the said application, perused the order dated 20.02.2010 passed by the Trial Court as also the order dated 12.03.2010 passed by the Appellate Court. 5. Learned counsel for the petitioner submitted that though there were 4-5 Advocates on record and, in fact, Shri Abdul Salam, Advocate has to argue the case, due to this reason other Advocates did not appear in the Court and only Shri Mohd. Rais, Advocate appeared before the Trial Court and sought adjournment. He further submitted that cross-examination of the witnesses is extremely necessary for proper adjudication of the case. On the other hand, Shri Ajay Veer Pundir, Advocate made strong objection. He submitted that the petitioner for one pretext or the other is getting the case adjourned several times and, in fact, considering his conduct the petitioner should not be given any further opportunity. 3 6. The Trial Court in his order dated 20.02.2010 has observed that in the Wakalatnama, there appear the names of the Advocates, namely, Shri B.B. Sharma, Shri Avnindra Kumar and Shri Jatan Singh Panwar, Advocates appearing for the defendant no.4. It is also mentioned that the date 20.02.2010, being Saturday, was fixed in the matter accommodating Shri B.B.Sharma, Advocate. The Trial Court in his order has observed that there being no reasonable cause, when Shri Abdul Salam, Advocate was absented and the defendant no.4 was also absented, the adjourned application was rejected. The Trial Court found that issues have been framed in the matter and on leading evidence by the plaintiff after the plaint was amended, the defendant for one or other reason is seeking adjournments. The Trial Court accordingly rejected adjournment application of the defendant/petitioner. In the Misc. Appeal, the Appellate Court has observed that the defendant/appellant was engaging different counsel for pursing the suit on the dates fixed by the Trial Court and avoiding to cross-examine the witnesses of the plaintiff. The Appellate Court accordingly, dismissed the Misc. Appeal preferred by the defendant/petitioner. 7. Having heard the learned counsel for the parties and on perusal of the entire material available on record, in the interest of justice, this Court thinks it fit and proper that incase, one further opportunity is given to the petitioner to cross-examine the witnesses and produce his entire evidence on the next date fixed, the ends of justice will meet. 8. Accordingly, the writ petition is partly allowed. The petitioner is permitted to cross-examine the witnesses and lead his evidence before the Trial Court on the next 4 date fixed or any other date fixed by the Court subject to payment of cost of Rs. 2,000/- to be paid to the plaintiff/respondent. The Trial Court shall decide the suit no.64 of 2005 expeditiously. Learned counsel for the parties undertake that they will cooperate in the expeditious disposal of suit. (V.K. Bist, J.) 26.04.2010 NCM: