Arvinder Kaur Walia v. Gurmukh Singh

A-44 % 24.10.2011 Present: Mr.Mohd.Rashid, Advocate for the petitioner. +CM(M)No.l253/2011 * Orders impugned before this court are the orders

03.3.2011 and

16.8.2011. Vide

03.3.2011 defence of the defendant had been struck off; on that day it was noted that the defendant had been proceeded ex parte on an earher date which proceeding ex parte against defendant had subsequently been set aside and the defendant had been directed to file written statement within 15 days subject to cost; this was on

06.10.2010; on

19.11.2010 a photocopy of written statement had been filed; application seeking condonation of delay in filing the written statement within 15 days had also been filed; cost had not been paid. Court, on 03.3.2011, in these circumstances, had been constrained to strike off the defence of the defendant. Matter was thereafter listed on

09.5.2011; thereafter on

16.8.2011 when the second impugned order was passed. On 16.8.2011, matter had been listed for petitioner's evidence; witness was present but the counsel for the defendant was not available as a Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 'Z-result of which the right of the defendant to cross-examine said witness stood closed. This is the second order which has been inipugned. Admittedly

03.3.2011 not having been challenged till date, it is clear that a long period of time having been elapsed for which there is no explanation whatsoever. It is clear that the order dated 03.3.2011 had been accepted by the petitioner; also reveals that defendant had been proceeded ex parte on an earlier date; in spite of opportunity having been granted to him to file his written statement within a period of 15 days he did not avail of the said opportunity; in these circumstances the order dated

03.3.2011 does not in no manner suffer from infirmity. A lackadaisical and careless litigant does not deserve any sympathy. On 16.8.2011 the right of the defendant to cross-examine PW—1 had been closed; the said order disclosed that the defendant had sought an adjournment on the ground that his counsel is not well because of leg injury. In these circumstances the right to cross-examine stood closed. Keeping in view the averments made in the present application as also the submissions urged by the learned counsel for the petitioner that the petitioner is a patient of kidney failure and for the reason that he was undergoing dialysis complete instructions could not be obtained from petitioner,

16.8.2011 is recalled; one more opportunity is granted to the petitioner to cross-examine PW—1 on the next date of hearing which is stated to be 03.11.2011. This order is passed subject to cost of Rs.2000/-. Petition is disposed of. Order dasti. A copy of this order be sent to trial court for jbompliance. OCTOBER 24, 2011 nandan INDERMEET KAUR, J