CM(M) No.213/2007 Page 1 of 4 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 13th May, 2008 + CM(M) No.213/2007 & CM No.2213/2007 # NEELAM GULLA & ORS. ..... Petitioner ! Through: Mr. J.K.Sharma, Advocate Versus $ O.P. NANGIA ..... Respondent ^ Through: Mr. M.R. Chawla, Advocate CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the reporters of local papers may be allowed to see the judgment? 2. Whether the judgment be referred to the reporter or not? 3. Whether the judgment should be reported in the digest? Veena Birbal, J. (ORAL) Petitioners have challenged impugned order dated 3.1.2007 passed by Ld. Civil Judge. It is stated that the respondent/plaintiff has filed a suit for possession of plot No.1, Block No.D, measuring 200 sq. yards, Bhagwan Dass Nagar, Rohtak Road, New Delhi and for permanent injunction against Shri Subhash Chand (now deceased). During the pendency of the suit, Shri Subhash Chand died. After his death, the respondent/plaintiff moved an application for impleading petitioners as his legal representatives. The said application was allowed and the matter was fixed for 16.11.2005 for evidence of the CM(M) No.213/2007 Page 2 of 4 petitioners/LRs of deceased defendant. It is stated that respondent/plaintiff has already led his evidence. It is further stated that on 16.11.2005 petitioners apprised the court that one of the legal representative is a minor and the said fact is in the knowledge of the respondent/plaintiff also and the matter was adjourned to 8.2.2006. It is further stated that on that day learned trial court was on leave and the matter was adjourned to 13.4.2006 for proper order. On the said date, petitioners apprised the court that their counsel was suffering from high blood pressure and sugar and was not in a position to appear before the court and the matter was fixed on that day for proper order only. Despite that Ld. Civil Judge closed their evidence and the matter was adjourned to 11.7.2006 for final arguments. Thereafter, petitioners moved application under Section 151 CPC for setting aside order dated 13.4.2006. However, the same was dismissed vide impugned order mentioned above. Counsel for petitioners has submitted that impugned order dated 3.1.2007 has been passed in a haste manner. It is contended that impugned order has serious consequences upon the petitioners inasmuch as they will not be in a position to put forward their defence. It is contended that petitioners have to produce only one witness namely Neelam Gulla i.e. wife of deceased defendant Subhash Chand. It is further contended CM(M) No.213/2007 Page 3 of 4 that her evidence could not be lead earlier due to reasons mentioned above. It is contended that if impugned order is not set aside, it will cause serious prejudice to them whereas no prejudice shall be caused to the respondent/plaintiff as he will get full opportunity to cross-examine the said witness. Learned counsel for respondent/plaintiff has opposed the petition by filing reply. However, during arguments, learned counsel has submitted that to cut short delay in the matter he has no objection if petition is allowed and the petitioners are given one opportunity to lead their evidence. I have heard counsel for parties and perused the record. As noted above, there is only one witness of petitioners i.e. Neelam Gulla. The impugned order has serious consequences upon the petitioners/defendants as the same is depriving them of having a fair opportunity to defend themselves in the present case. In the interest of justice and for effective adjudication of matter on merits, the impugned order dated 3.1.2007 is set aside and in consequence thereof order dated 13.4.2006 is also set aside and petitioners/defendants are given one more opportunity to lead evidence of its witness namely Smt. Neelam Gulla, subject to payment of cost of Rs.4000/- to respondent/plaintiff. Her examination-in-chief will be filed by way of affidavit on 30th May, 2008 i.e. the date already fixed in the matter. The witness shall be present in CM(M) No.213/2007 Page 4 of 4 court on the said date. If Board of learned trial court permits her cross-examination on that day, in that event cross- examination of the said witness will be recorded on 30.5.2008. If cross-examination could not be recorded on the said date in that event learned trial court would be at liberty to fix the same for some other date as per its convenience. The petition stands disposed of accordingly. Copy of this order be sent to learned trial court. VEENA BIRBAL, J MAY 13, 2008 srb