IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 277 of 2010 Date of decision: 28.09.2010 Tej Ram …Petitioner. Versus Hira Lal & others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1No. For the petitioner: Mr. Neeraj Gupta, Advocate. For respondents No. 1 to 3: Mr. Bimal Gupta, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 19th May, 2010, whereby the evidence of the petitioner, who was defendant No. 3 before the learned trial Court, has been closed. 2. Issues in the suit before the learned trial Court were framed on 17th July, 2008 and the case was fixed for plaintiffs’ evidence on 29.10.2008. No evidence was present on 29.10.2008 and plaintiffs examined its evidence on the next date, i.e. 26th February, 2009 and the case was, thereafter, fixed for defendants’ evidence on 20th May, 2009. On 20th May, 2009, witnesses were not present and at the request of learned counsel for the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 defendants, matter was adjourned to 30th July, 2009. On this date also, no evidence was present, but defendant No. 3 filed an application under Order 8 Rule 1 – A (3) A with the prayer that he be permitted to place on record certain documents. There was no opposition to this application and the same was allowed and the matter was adjourned to 18th November, 2009 for recording the defendants’ evidence, when statements of three DWs were recorded and for remaining evidence, the matter was listed for 10th March, 2010. On 10th march, 2010, again no evidence was present. A request for adjournment was made and the learned trial Court allowed this request as last opportunity and the petitioner was given dasti summons to serve the witnesses and the matter was listed on 19th May, 2010, when again no evidence was present and the impugned order was passed. 3. On going through the record, it is apparent that the petitioner-defendant No. 3 was granted as many as five opportunities to lead evidence. In fact, on 10th March, 2010, he was granted last opportunity for 19th May, 2010 and was given dasti summons to serve the witnesses. These witnesses were not served. In view of the above discussion, it cannot be said that the order of the learned trial Court is wrong. 4. Having held so, I feel that no party should be deprived of its right to contest a case on merits unless it is totally indolent and dilatory. The petitioner, in this case, may be negligent, but I still feel that in the interest of justice, one more opportunity should be given to the petitioner-defendant No. 3 to lead his evidence. 3 5. In view of the above discussion, the order dated 19th May, 2010 is set aside and the petitioner is granted one further opportunity to produce the remaining evidence as per the list of witnesses. It shall be the responsibility of the petitioner to serve the witnesses. He may take dasti summons for this purpose. In case, the witnesses are not served then the right to lead evidence shall stand closed. In case, the summons are served upon the witnesses and they appear in the Court, they shall be examined. However, in case summons are served upon the witnesses, but they do not appear, then the court shall take coercive steps to ensure their attendance in the court. The above order is passed subject to payment of Rs. 3,000/- as costs by the petitioner to the plaintiff before he is permitted to lead such evidence. The parties through their counsel are directed to appear before the learned trial Court on 15th November, 2010, the date already fixed in the case. (Deepak Gupta) Judge September 28, 2010 (rajni)