Civil Revision No.4900 of 2011 -1- IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4900 of 2011 Date of Decision: 8.9.2011 Hukam Chand and another .....Petitioners Versus Bhagwan Singh Yadav and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Sanjay Mittal, Advocate for the petitioners. M ehinder S ingh S ullar , J .(Oral) Concisely, the facts, which require to be noticed, for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record, are that Bhagwan Singh Yadav son of Raghbir Singh Yadav and Ramesh Kumar son of Radhey Shyam respondent Nos.1 and 2- plaintiffs (for brevity “the plaintiffs”) filed the suit seeking a decree for declaration and permanent injunction to the effect that the Dharamshala in question is a gairmumkin Dharamshala and Hukam Chand and Beena Devi petitioners and other defendants (for short “the defendants”) have no right, title or interest to alienate it in any manner. Since the petitioner-defendants did not appear despite service, so, exparte proceedings were ordered against them. Consequently, the main suit was decreed, by way of ex-parte judgment and decree dated 13.11.2003. 2. According to petitioner-defendants that when they came to know, then they moved an application for setting aside the ex-parte decree on the ground of their non-service in the main suit, invoking the provisions of Order 9 Rule 13 CPC, in which, the trial court had framed the issues. During the pendency of the indicated proceedings, the petitioner-defendants moved an application that they be Civil Revision No.4900 of 2011 -2- permitted to examine Mitter Sain, one of the defendants in the present case. The trial Court dismissed the application, by virtue of impugned order dated 23.5.2011 (Annexure P1). 3. Aggrieved by the decision of the trial Court, the petitioner- defendants preferred the instant revision petition. 4. At the very outset, in exercise of power under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the respondent- plaintiffs, in order to save them from the expenditure of counsel fees, litigation expenses in this Court and the delay in disposal of the matter, particularly when they can be compensated with adequate costs in this respect. Be that as it may, but still, the plaintiffs would be at liberty to file the petition to review this order, without accepting the costs, if they so desire. 5. After hearing the learned counsel for the petitioner-defendants, going through the record with his valuable assistance and after deep consideration over the entire matter, to my mind, the present petition deserves to be partly accepted in this context. 6. As is evident from the impugned order (Annexure P1) that the main ground, which appears to have been weighed with the trial Court in dismissing the application of the petitioner-defendants, was that they have closed their evidence after availing ample opportunity and there was no explanation as to why Mitter Sain defendant No.7 was not examined at that time. 7. Ex facie, it may be true, but the fact remains is that their counsel did not examine even a single defendant as witness. Petitioner Hukam Chand has sworn an affidavit dated 26.8.2011, wherein, it was reiterated that none of the defendants has been examined in the evidence, in support of the application under Order 9 Rule 13 CPC. So, taking into consideration the nature of litigation and the fact that none of the defendants was examined in the case, to me, the trial Court ought to have granted one more opportunity to the defendants to examine Mitter Civil Revision No.4900 of 2011 -3- Sain defendant No.7, in support of the application for setting aside the ex-parte decree subject to costs. To my mind, the evidence of defendants is essential to decide the real controversy between the parties and is the legal requirement of fair trial. If the opportunity to examine one of the defendants is not granted, then it will inculcate and perpetuate injustice to the defendants. Moreover, no prejudice is going to be caused to the plaintiffs, particularly when they can be compensated with adequate costs in this relevant behalf. The case is still fixed for evidence. 8. In the light of aforesaid reasons, the instant revision petition is partly accepted. Consequently, the impugned order (Annexure P1) is hereby set aside. The trial Court is directed to provide one opportunity to the defendants, to examine Mitter Sain defendant No.7 as witness, in support of the application under Order 9 Rule 13 CPC. However, this would be subject to the payment of Rs.5,000/- (Rupees Five Thousand) as costs, to be paid by the petitioner-defendants to the respondent-plaintiffs. The payment of costs would be a condition precedent to the further defence of the application under Order 9 Rule 13 CPC. (Mehinder Singh Sullar) 8.9.2011 Judge AS