r~- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BBNCH: HON*BLE SHRI T. P. 8HARMA & HON'BLB SHRI R.L. JHANWAR. JJ. - FIRST APPEAL No. 169/2005 APPBLLANTS 1 M/s. Jain Bricks Pvt. Ltd. 36 Heem DEFENDATNS Market, New Bus Staad, Pandri Raipur 2 Shri Suresh Jain, aged about 42 years, S/o Shri Latturam Agrawal, R/o Choube Colony, Raipur, TahsU & District Raipur, Director M/s. Jam Bricks Pvt Ltd. Raipur (CG) Versus RB8PONDBNT Om Prakash Agrawal, aged about 42 years, PLAINTIFP s/o Late LaUu Prasad Agrawal, R/o Geetaiijali Nagar, Raipur, TahsU & Distarict Raipur (CG) APPLICATION U/8 96 OF THE CODE OP CIVIL PROCEDURE Present: Shri Kishore Bhaduri aad Shri Pawan Kesharwaoi, counsel for ftie appeUaats. Shn B.P. Shanna, counsel for the rcspondent. PRAI'-JUDGMENT (Passed on 7th July, 2010) The followmg judgment of the Court was passed by T. P. Sharma, J. 1. By fhis appeal, appellaats/defendants have challenged fhe iUegaUty aad propriety of fhe judgment aad decree dated 7.7.2005, passed by the 5th Additional District ^ Judge, Raipur (CG) in C.S. No.l9-B of 2003, decreeing fhe suit for recoveiy agaiast fhe appeUants/defendants. The judgnient and decree is chaUenged on fhe ground fhat witfaout providing rcasonable opportunity of adducing evideuce to the appeUaats/defendaats, Court below has closed the right of adduciag evidence of fhe appeUants aad decreed fhe suit aad fhereby coimnitted iUegality. As per pleadiags for disposal of fhis appeal are fhat the respondent/plamtiff has filed a siut for recovery of Rs.3,24,000/- agaiast fhe appellaats/defendaats on fhe basis of a Cheque. Present appellaats/defendants have contested fhe case by filing a written statement. After closing fhe evidence of respondent/plaiatiff, opportunity to adduce fhe evidence has been provided to the appeUants/defendants, but on accoiiat of failure to produce the evidence aad even exammiag tiiemselves as witaesses, Court below has closed fhe opportunity of adduciag evidence of the appeUaats/defendaats vide order dated 25.6.2005 aad after heariiig the parties, decreed the suit in. favour of the respondent. We have heard Shri Kishore Bhaduri, leamed counsel for the appellaats aad Shri B.P. Shanna, leamed counsel for fhe respondent, perused the judgment and decrce impugned aad record offhe Courtbelow, Leamed counsel for fhe appeUants/defendants fairly admitted that in fhe present case, Court below has provided opportunity of hearing to fhe parties, but present appeUaats/delendaats have not adduced aiiy evidence ia support of fheir claun aad on 25.6.2005, opportunily of adducing evidence of fhe appeUaiits has been denied by fhe Court, He further subinitted fhat ia %. ' 'i •^'-T^^ //^ :\ I'^^l \^--y ^ 8. fhe absence of opportunity of adduciag evidence, Court below has erroneously set ofT fhe defence of fhe appeUants/defendants, On the ofher hand, learaed counsel for fhe respondent vehemently opposed the petition and submitted fhat aa ample opportunity has been provided to fhe appeUaats/defendaats for adducmg fheir evidence, but fhe appellaats have not adduced fheir evidence on fhe date fixed for evidence and fhey theiaselves have failed to exainiae fhera as witaesses. Record of fhe Court below revealed tiiat on 25.6,2005, case was fixed for defendaats/appeUaats evidence but on that date, an appUcation for adjoumDient was fUed after dismissal of the sanie. The appeUant Suresh Jaia has refused to give evidence on account of his iUness. This is a suit for recoveiy of Rs.3,24,000/- aad decree for recovery has been granted agaiast fhe appellaats/defendants, Definitely, an opportunily was provided to fhe appeUants for adduciag fheir evidence, but on 25.6.2005 on account of iUness of appeUant No.2, he was not in a position to give his evidence or fhe evidence of ofher witaesses, who were not prcsent In fhese circuiastaaces, reasonable opportunity shoiild have been given subject to heavy cost, but instead of providiiig opportiinily, Court below has closed fhe evidence axid fhereby cominitted illegality. Consequently, the appeal is allowed. Judgment and decree is hereby set aside subject to cost of Rs.5000/" payable within 30 days from today on fhe respondent. The case is remitted back to fhe Court below for providiag opportanity of adduciag evidence and after hearing the ¥"M'%^^. T •1 T l:.:':?&iy^-, h '^Y ^ 4 ^ case, decide it afresh. Appellants are dirccted to produce fheir whole evideuce. 9. Pardes are directed to remam present before the Court below on 9th August, 2010 aad Court below shaU provide aa opportunity of adduciag evidence on any date. The appeUants are under obligation to present aad examine all fhe witaesses on such date as may be given by the Court below. 10, Pardes shaU bear fheir own cost Advocates" fee as per schedule, 11. Decree be drawn accordiagly. yvw^h^ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge