IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1159 of 2008 RAM DULAR YADAV @ RAM DULAR BHARTI Versus JAGDEV SHARMA & ORS ----------- 2. 11.9.2008 Heard counsel for the petitioner. In the opinion of this Court the circumstances in which the petitioner could not produce his witnesses leading to closure of his case were partly beyond his control. It is so because the plaintiff had closed his case only on 20.2.2008 and if thereafter the defendant petitioner was asked to produce his evidence in the order dated 15.3.2008 to 2.4.2008, the petitioner cannot be faulted as there was call for strike by the lawyers in between 2.4.2008 to 10.4.2008. Effectively therefore the first date for leading evidence for the petitioner was 23.4.2008 on which day when the time petition was filed the same was allowed fixing the date of 3.5.2008 on which day the petitioner had adduced evidence of one witness. The next date fixed for examination of next witness was 21.5.2008 and if on that day for the reasons as mentioned in the order sheet itself being the illness of the petitioner is accepted leading to non- 2 appearance of his witness, the court below in all fairness ought to have given at lease one more opportunity before closing the evidence. That having been not done and the evidence being closed on 21.5.2008 and the case having been fixed for ex-parte hearing has really occasioned injustice to the petitioner. Considering the fact that in this hide and seek game of the defendant petitioner, it is the plaintiff-opposite party who has been put to some sort of inconvenience and harassment since he had already proceeded to complete his argument in between 7.6.2008 to 26.6.2008, whereafter the case was fixed for judgment, this Court while taking the equitable interest of the petitioner would also like the petitioner to do same equity to the plaintiff opposite party. On this counsel appearing on behalf of the petitioner would offer a sum of Rs. 2500/- by way of cost for compensating the plaintiff for the harassment caused to him on account of non-production of the witnesses and ex-parte hearing followed by 3 the arguments. Thus, this Court taking into consideration the aforementioned circumstances would allow this application, set aside the impugned order and direct the petitioner to pay a sum of Rs. 2500/- within a period of 15 days from the date of receipt/production of copy of this order thereafter the petitioner will be given permission to produce his five witnesses who are only required to be examined by the petitioner. Counsel assures that these five witnesses would not only be produced in time on the date fixed by the Court below but infact they will be also examined within a period of two weeks from the commencement of the deposition of the first witness of the defendant petitioner. The court below will accordingly fix dates for examination of the witnesses giving the petitioner only a period of two weeks and thereafter the arguments must be taken up once again and completed in next one month. The judgment thereafter must be delivered within a period of three months from the date of receipt/ 4 production of a copy of this order. It is made clear that if the petitioner fails to avail this opportunity as indicated above and defaults in any manner either in course of examination of his witnesses or in course of argument, the court below will at liberty to proceed ex- parte against the defendant-petitioner. With the aforementioned observations and directions this application is allowed. (Mihir Kumar Jha,J.) Surendra/