IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 952 of 2009 (M/S) Smt. Rukshana Umar W/o Sri Mohammad Umar R/o 228/8, D.L. Road Dehradun. …Petitioner/Defendant No. 1. Versus Sri R.K. Agarwal S/o O.P. Agarwal R/o 11, Cross Road Dehradun. …….Plaintiff/Respondent. Sri Mohammad Umar Clerk, R.T.O. Office 105, Rajpur Road, Dehradun. ….Formal respondent/defendant No. 2. Shri U.P.S. Negi, Advocate for the petitioner. Shri V.K. Kohli, Advocate for the respondents. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 227 of Constitution of India, the petitioner has challenged order dated 22.04.2009, passed by Additional District Judge, Dehradun, in Civil Revision No. 01 of 2009, affirming the order dated 20.09.2006 and order dated 14.10.2008, passed by the trial court (Civil Judge, Jr. Div. Ist, Dehradun), in suit No. 58 of 2005. 2. Heard learned counsel for the parties and perused the impugned orders. 3. Brief facts of the case are that plaintiff/respondent No. 1, instituted a suit for 2 recovery of Rs. 50,220/-, against the defendants. It appears that on 28.07.2006, additional issues were framed by the trial court. On 17.08.2006, additional evidence was taken. On 29.08.2006, the defendants were required to cross examine the witness of the plaintiff. But adjournment was sought on behalf of the defendants, which was allowed on payment of Rs. 120/-, and 07.09.2006, was fixed for cross examination. Thereafter, again 20.09.2006, was fixed for cross examination of the plaintiff’s witness, and when the defendants failed to cross examine the witness even on that date, the trial court closed the cross examination and fixed 05.10.2006, for defendants’ evidence. On said date, the defendants took adjournment and got fixed 21.03.2007, for evidence. Again on said date defendants took adjournment and 20.04.2007 was fixed. The story repeated on said date and 12.11.2007 was fixed. Lastly, on 30.11.2007, the defendants moved an application for recall of order dated 20.09.2006, closing the cross examination of the plaintiff, which was rejected by the trial court and affirmed by the revisional court. Hence this petition. 4. The facts of the case clearly show the negligence on the part of the defendants in contesting the case and seeking adjournments against the spirit of Code of Civil Procedure, 3 1908. Technically the courts below have committed no error of law in passing the impugned orders. Learned counsel for the petitioner submitted that only one more chance may be given to the defendants to cross examine the plaintiff’s witness. And the defendants undertake to cross examine the witness on said date and not to seek further adjournments. 5. Having considered submissions of learned counsel for the parties, in the interest of justice, this writ petition is disposed of with the following direction:- The impugned order dated 20.09.2006, and order dated 14.10.2008, passed by the trial court and the order dated 22.04.2009, passed by the revisional court, are set aside on the following conditions:- 1. The witness of the plaintiff to be cross examined shall be produced on the date fixed by the trial court within a period of one week of receiving of certified copy of this order in said court and on that day if the defendants failed to cross examine the witness, the orders passed by the trial court and the revisional court shall become alive and the trial court may proceed further treating that said orders have been upheld by this Court. If the defendants cross examine 4 the plaintiff’s witness on the date so fixed, the trial court shall proceed further in accordance with the law, as expeditiously as possible. 2. No further adjournment shall be allowed to the defendants, as the plaintiff is a senior citizen. This order is being passed on further condition of payment of costs of Rs. 1,000/- to be paid by the defendants to the plaintiff or the said amount may be deposited in favour of the plaintiff, in the trial court within a period of 15 days from today. (Stay application No. 5298 of 2009, also stands disposed of). (Prafulla C. Pant, J.) Dt:06.08.2009 Sweta 5 6 7 8 9 10