IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15217 of 2010 1. NARAYAN PRASAD S/O LATE PARMESHWAR PRASAD R/O MOHALLA- PETHIA BAZAR, DANAPUR, P.S.- DANAPUR, DISTT.- PATNA Versus 1. MOHAN GUPTA S/O LATE DAMODAR GUPTA R/O MOHALLA- SADAR BAZAR, P.S.- DANAPUR, DISTT.- PATNA 2. ANIL KUMAR NAGBANSHI S/O KRISHNA PRASAD NAGBANSHI R/O MOHALLA- BIBIGANJ SHANTI GALI, NEAR TARI GODOWN, P.S.- DANAPUR, DISTT.- PATNA ----------- 03. 21.04.2011 Heard learned counsel for the petitioner and for respondent no.1. The petitioner is stated to be the defendant no.1 in Title Eviction Suit No. 09 of 2006 preferred by respondent no.1. The petitioner is aggrieved by the order dated 19.12.2009 rejecting his application to allow him to lead evidence. Learned counsel submits that the evidence of the petitioner was closed on 29.8.2008 for a single lapse. The application for recall was allowed on 12.12.2008. On the next date, 22.12.2008 the Court was not available. A single default on part of the petitioner on 3.1.2009 has led to the closure of his evidence again. The petitioner in his application for recall of the order had mentioned in paragraph-2 that he had fallen ill. Notwithstanding which the impugned order has rejected his prayer. Learned counsel for the respondent no.1 submits 2 that the impugned order adequately notices the manner in which the petitioner was trying to prolong the Eviction Suit. The case was running for final arguments. No plausible explanation has been given by the petitioner why he failed to take advantage of the order dated 12.12.2008 except for prolonging the case. It does not appear from the order-sheet that the costs of Rs. 250/- awarded against the petitioner on 12.12.2008 subject to which he was allowed to lead evidence was deposited till date. Learned counsel for the petitioner is unable to assist the Court on this aspect. The Eviction Suit is of the year 2006. The order dated 12.12.2008 expressly notices the strong debate from both sides of the illness of the petitioner denied by the respondent. The Court then concludes that it was not satisfied of any illness of the petitioner as he had failed to produce any evidence medical or otherwise in support of the same. This Court finds that again in the application for recall preferred from which the present impugned order arises except for a bald statement in paragraph-3 that he fell ill, no details have been mentioned of the date of illness along with any proof in support thereof. This is crucial for the petitioner in view of the rejection of the ground of his illness in the order dated 12.12.2008. The impugned order adequately notices his conduct attempting to delay the 3 disposal of the Suit which was now running for final arguments. The Court is more than satisfied that there is no merit in the case of the petitioner at all. However, since an adjudicatory order is always preferred to an order without proper contest with all its possibility of remand etc. by the Appellate Court, it is considered proper in the interest of justice to set aside the order dated 19.12.2009 subject to the following conditions:- (A). On the next date fixed in the Suit to be computed from today, the petitioner shall present himself before the trial court for his evidence. The trial court shall record his evidence day to day without granting any adjournment. Cross-examination shall also be in continuity day to day, so that the evidence of the petitioner is concluded without any adjournment. If the petitioner seeks any adjournment, it shall be entirely at his risk and the discretion of the trial court shall not be fettered in any manner because of the present order. (B). Since costs of Rs. 250/- on 12.12.2008 did not appear to deter the petitioner in his attempt to delay the Eviction Suit, the Court considers it proper to impose costs presently of Rs.1,000/- to be paid by the petitioner to respondent no.1 and subject to which he shall be allowed to lead his evidence. 4 (c). If the costs of Rs.250/- awarded by the order dated 12.12.2008 has not been deposited, this writ petition shall be deemed to have been dismissed when the directions contained in Clause-A and B shall not govern the proceeding in Title Eviction Suit No. 09 of 2006. The application is conditionally allowed. P.K ( Navin Sinha, J.)