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Mohinder Prakash and anr. Vs. Haqiq Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 864 of 1975
Judge
Reported inAIR1977P& H31
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rules 1, 1(3) and 3 - Order 47 - Rule 1
AppellantMohinder Prakash and anr.
RespondentHaqiq Singh
Appellant Advocate S.K. Goyal, Adv.
Respondent Advocate M.M. Punchhi, Adv.
Cases ReferredBasant Kaur v. Smt. Gurdyalo
Excerpt:
.....special circumstances justifying adjournment of the case on payment of costs. the application was contested by the defendant who in his written reply dated april 7, 1975 laid emphasis on the fact that the plaintiff had failed to perform his duty of furnishing process fee and expenses for the issue of the bailable warrant for procuring the attendance of the naib tahsildar and described the allegation about the death of the plaintiff's uncle as wrong and denied the same. not satisfied with the order closing his evidence on march, 19, 1975, and dismissing his review application on april 18, 1975, the plaintiff has come up to this court with a prayer to review and reverse both the orders and to allow the plaintiff to produce the naib tahsildar and himself in the witness-box......no evidence was recorded. one moti ram delivered the file which had been summoned from him. the naib tahsildar (who must have been summoned for that date) was not present. the order of the trial court recorded on that date does not at all show why the naib tahsildar was not present. the learned subordinate judge should have mentioned in the order whether the witness had been summoned and if so whether he had been served or not; and if he had been summoned within time and not served, the reason for service not having been effected on him. once again, the court below seems to have adjourned the case to january 13, 1975, for summoning the naib tahsildar without going into the relevant matters on the basis of which he could have decided whether further adjournment should or should not be.....
Judgment:
ORDER

R.S. Narula, C.J.

1. In a suit for possession filed by the plaintiff-petitioner against the defendant-respondent, issues were framed on July 19, 1974, and the case was adjourned for the evidence of the plaintiff to September 9, 1974 On the said first date fixed for plaintiff's evidence, no witness of the plaintiff was either summoned or otherwise present in Court. The proper course for the trial Court in those circumstances would have been to call the plaintiff in the witness-box if he desired to appear and then to direct the defendant to enter on his defence. There was no earthly reason why another opportunity should have been allowed to the plaintiff unless the Court was satisfied on the basis of an affidavit produced before it or on the basis of the statement of the plaintiff that there were some special circumstances justifying adjournment of the case on payment of costs. The trial Court seems to have adjourned the case as a matter of routine though there was no reason for doing so. It is orders of this type that delay the disposal of cases in the trial Court.

2. On November 6, 1974, the second date fixed for plaintiff's evidence, the coats of adjournment were paid by the plaintiff but no evidence was recorded. One Moti Ram delivered the file which had been summoned from him. The Naib Tahsildar (who must have been summoned for that date) was not present. The order of the trial Court recorded on that date does not at all show why the Naib Tahsildar was not present. The learned Subordinate Judge should have mentioned in the order whether the witness had been summoned and if so whether he had been served or not; and if he had been summoned within time and not served, the reason for service not having been effected on him. Once again, the Court below seems to have adjourned the case to January 13, 1975, for summoning the Naib Tahsildar without going into the relevant matters on the basis of which he could have decided whether further adjournment should or should not be allowed. On January 13, 1975, one witness of the plaintiff was present and was examined. No other witness was present and the case was adjourned to March 19, 1975. The order of the Court does not show whether the plaintiff had filed his list of witnesses before entering on his evidence or not. The order should normally have disclosed as to whether the remaining witnesses for whom the case was being adjourned to March 19, 1975, had been summoned or not and why those witnesses were not present on that date and on the previous dates. Though the order does not show that Chander Bhan, Naib Tahsil-dar, was absent in spite of service, it can be presumed that this must be the situation because the order recorded by Shri B. R. Vohra, learned Subordinate Judge, states that the said Naib Tahsildar be summoned through bailable warrant for the next date.

3. It was on March 19, 1975, that the case was then taken up. No evidence on behalf of the plaintiff was present. The plaintiff himself was absent. Of course, he was represented by his counsel. The learned Subordinate Judge noticed in his order of that date that the plaintiff had not filed the process fee for the issue of bailable warrant to the Naib Tahsildar and he had not summoned any witness. He, therefore, held that there was no justification in giving any other opportunity to the plaintiff and closed his evidence. The case was then adjourned to May 5, 1975, for the evidence of the defendant.

4. It is alleged that the plaintiff reached the Court the same day about 3.30 p.m. and made an application on the next day (March 20, 1975) for review of the order of the trial Court, dated March 19, 1'975, In that application, it was stated that when the plaintiff informed Chander Bhan, Naib Tahsildar, of the order of the Court, dated January 13, 1975. he asked the plaintiff to refrain from getting his warrant issued on the assurance that he would voluntarily appear in the Court on the next date. It was further averred in the application that during the night preceding March 19, 1975, plaintiff's uncle Babu Ram had suddenly died and inasmuch as the plaintiff had to arrange his funeral and he remained occupied till the cremation took place at about 12.30 p. m.. he could not reach the Court within time. It was added that the counsel for the plaintiff was not aware of the aforesaid facts and could not therefore, bring the same to the notice of the Court. It was, therefore, prayed that the order dated March 19, 1975, be reviewed and the plaintiff may be afforded one more opportunity to produce and conclude his evidence. The application was contested by the defendant who in his written reply dated April 7, 1975 laid emphasis on the fact that the plaintiff had failed to perform his duty of furnishing process fee and expenses for the issue of the bailable warrant for procuring the attendance of the Naib Tahsildar and described the allegation about the death of the plaintiff's uncle as wrong and denied the same. It was not specifically denied that the plaintiff had absented himself due to the death of his uncle. He prayed for the dismissal of the plaintiff's application for review of the order as the same was misconceived, mala fide and not maintainable.

5. By his order dated April 18, 1975, the learned Subordinate Judge dismissed the review application, also. Not satisfied with the order closing his evidence on March, 19, 1975, and dismissing his review application on April 18, 1975, the plaintiff has come up to this Court with a prayer to review and reverse both the orders and to allow the plaintiff to produce the Naib Tahsildar and himself in the witness-box.

6. A bare perusal of the facts and history of the case referred to above, conclusively shows that there is no justification whatsoever for the plaintiff ask-ing for a further opportunity to produce the Naib Tahsildar. In any case, the order of the trial Court refusing the plaintiff an opportunity for re-summoning the said witness is fully justified and I am unable to find any ground to interfere with the same.

7. The argument of Mr. S. K. Goyal, learned counsel for the plaintiff-petitioner, is that in view of the law laid down by this Court in Smt. Dakhri v. Munshi, (1967) 69 Pun LR 149 and in Basant Kaur v. Smt. Gurdyalo, (1975) 77 Pun LR 772, the order of the trial Court closing the plaintiff's case is without jurisdiction, inasmuch as the case not having been disposed of on March 19, 1975, the trial Court could not have resorted to the provision of Rule 3, Order 17 of the Code of Civil Procedure (hereinafter referred to as the Code) to close the plaintiff's evidence. This argument is misconceived. If the trial Court after closing the case of the- plaintiff, had proceeded to decide the suit forthwith, the order would have been covered by Rule 3, Order 17 of the Code. What the trial Court appears to have done in the instant case is to resort to Sub-rule (3) of Rule 1, Order 17 of the Code (added by the Pun-jab and Haryana High Court), which is in the following words :--

'Where sufficient cause is not shown for the grant of an adjournment under Sub-rule, (1), the Court shall proceed with the suit forthwith.'

The only proper course for the trial Court was to refuse to adjourn the case for the production of Chander Bhan, Naib Tahsildar, as the trial Court found no sufficient cause for the grant of an adjournment for that purpose. The trial Court thereafter proceeded with the suit forthwith and closed the plaintiff's evidence as the plaintiff was admittedly not present and neither his counsel nor the Court had any idea about the cause of his absence. The trial Court had no alternative at that stage. Further proceeding with the case then involved production of defendant's evidence. The case was hot fixed on that date for that purpose. It had to be adjourned. No fault can, therefore, be found with the order of the learned Subordinate Judge, dated March 19, 1975.

8. So far as the order dismissing the review application is concerned, I am again unable to set aside that order so far as it relates to the claim for an opportunity to produce the remaining evidence of the plaintiff, i.e. Naib Tahsildar. Somewhat different consideration, however, applies to the production of the plaintiff himself in the witness-box. Though the allegation of the death of his uncle had been denied in the written reply to the plaintiff's application for review and though the allegation was extremely vague inasmuch as the exact relationship of the plaintiff with the deceased had not been explained at any stage and it was not even said why the plaintiff had to take the responsibility of making arrangements for cremation, it does not appear that the plaintiff could have any motive for absenting himself from the Court. In the circumstances of the case, it is possible that he might have thought that the Naib Tahsildar would be examined on the same day and another date may be given for his own statement. Mr. S. K. Goyal, learned counsel for the plaintiff-petitioner, is correct in submitting that normally evidence cases are taken late in the date and as such the plaintiff hoped to reach the Court by about 3. 30 P. M. as he did and he could not send any advance information to his counsel about the mishap which had detained him. Taking into consideration all these circumstances, I feel that though the plaintiff, who has been extremely negligent in the prosecution of his suit, may not be entitled strictly in accordance with law to another opportunity to produce himself, the same should be allowed to him in the interest of justice.

9. While dismissing the revision petition on the aforesaid grounds, I direct that on the date fixed for recording the evidence of the defendant, the plaintiff may also be examined as his own witness and the remaining evidence of the defendant may be recorded thereafter. The examination of the plaintiff at this stage would entitle the defendant to recall any of his witnesses already examined by the trial Court, if he considers it necessary to do so. Even if the defendant's evidence is already closed, the plaintiff will have one opportunity to put himself in the witness-box. If no date has already been fixed by the trial Court for the appearance of the parties, they would now appear before it on October 11, 1978. The costs of this petition shall abide the result of the suit.


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