Arun Goyal and Others vs Anita Rani and Others

Rakesh Kumar Jain, J.

The plaintiffs have filed this petition against the order dated 03.05.2014 by which their evidence has been closed. In short, the plaintiffs filed the suit on 30.11.2006 for specific performance of the agreement to sell dated 23.10.2002. The issues were framed on 02.04.2009 and the plaintiffs were asked to lead their evidence on 04.05.2009. The trial Court has mentioned 35 dates on which the case was listed before it for the evidence of the plaintiffs before the impugned order was passed.

Learned counsel for the petitioners has submitted that oh 10.06.2009, two witnesses of the plaintiffs were present and examined. On 11.08.2009, the defendants filed an application under Order 18 Rule 3(A) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") asking the plaintiffs to examine themselves as witnesses before the other witnesses. On 17.09.2009, it was found by the Court that an application filed under Order 15 Rule 2 of the CPC was pending. The said application was decided on 20.10.2009, however, one witness of the plaintiffs, namely, T.R. Sharma was present but the defendants did not examine him and the matter was adjourned to 13.11.2009 and on that date, PW Aran Goyal tendered his affidavit and the case was adjourned to 01.12.2009 for cross-examination of that witness as well as for remaining unexamined PWs and for consideration of the application filed under Order 15 Rule 2 of the CPC. Thereafter, the case was adjourned on 2 dates because one of the plaintiffs had suffered an injury and the case listed on 25.03.2010 was taken up on 22.03.2010 because the Presiding Officer was going on leave and adjourned it to 12.05.2010 and on that date, the case was transferred to some other Court. On 26.07.2010, no PW was present and the case was adjourned to 09.08.2010 but on 09.08.2010 though the PWs were present but cross-examination was not conducted by the defendants and even on the next date, they were not cross-examined and the matter was adjourned for few dates and on 27.05.2011, it was again transferred to another Court. On 17.10.2011, an application was filed by the petitioners under Order 6 Rule 17 of the CPC which was allowed on the next date and ultimately, the pleadings were completed. On 04.02.2012, PW Arun Goyal tendered into evidence his amended affidavit and the case was fixed for his cross examination which was not conducted on the request of the defendants and on 26.05.2014, his part cross-examination was recorded. On 15.11.2012, the plaintiff was present but his cross-examination was not conducted. On 23.01.2013, the Local Commissioner was appointed for the plaintiffs'' evidence with the direction that he would complete the proceedings on or before 13.02.2013 and the case was adjourned to 13.02.2013 but on that date, the petitioner filed an application under Order 20 Rule 13 of the CPC and the case was adjourned to 26.02.2013. On 26.02.2013, reply to the application was filed and the matter was adjourned to 20.04.2013 for consideration on the stay application. However, on 18.04.2013, the case was again taken up by the Presiding Officer because he was on leave. On 06.08.2013, the case was adjourned to 17.07.2013 for consideration on application under Order 20 Rule 13 of the CPC which was ultimately dismissed on 22.01.2014. Thereafter, the case was adjourned w.e.f. 05.02.2014, 12.02.2014, 28.02.2014, 14.03.2014 and 15.04.2014 and the Court had recorded that the case is fixed for defendants'' evidence and ultimately on 03.05.2014, the impugned order was passed.

Counsel for the petitioners has argued that the trial Court, to whom the case was transferred on 03.05.2014, should have at least given One more opportunity to the petitioners to complete their entire evidence instead of closing the evidence on the ground that the petitioners have already availed many opportunities. She has also questioned the working of the trial Court as in the last 6 zimni orders, the trial Court has wrongly recorded that the case was fixed for D.Ws. which means that there was a total non-application of mind even while recording the zimni orders which should portray the true state of affairs which transpires in the Court proceedings. She has also submitted that the learned trial Court has also not cared to follow the orders passed by this Court in the case of ICICI Bank Ltd. And another v. M/s. Ohm Forex Services Ltd., CR No. 5009 of 2010, decided on 11.11.2010, which was circulated to all the Courts in the States of Punjab, Haryana and Chandigarh for compliance in which the direction was given to the Courts below to specifically record the names of the advocate appearing for a particular party, whereas in the zimni orders dated 12.02.2014, it is mentioned as "As above" and in the zimni orders dated 14.03.2014 and 15.04.2014, it is mentioned as "counsel for the plaintiff'' and "counsel for the defendant" and not their names.

Counsel for the petitioners has further argued that in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, , it has been held that the record of the Court has to be accepted as correct until and unless proved to the contrary before the same Court by way of an affidavit. Once there is a great sanctity attached to the record of the Courts, the Court below should not have recorded the orders in such a casual manner.

Counsel for the respondents has also filed an application bearing CM No. 1723-CII of 2014 seeking vacation of stay in which notice was issued on 07.07.2014. No reply to the application has been filed.

Be that as it may, it is argued by learned counsel for the respondents that the petitioners have not come to the Court with clean hands as they have already availed several opportunities to lead their evidence. On 27.05.2011, last opportunity was granted to the plaintiffs for leading their evidence. This last opportunity was again afforded on 25.08.2011, 27.04.2012, 10.05.2012, 06.06.2012, 21.07.2012, 27.08.2012 and 21.09.2012 and 06.10.2012 even with the costs which was not paid. It is also submitted that on 12.05.2014, defendant No. 1 had suffered a statement that he does not want to produce any evidence and the case was adjourned to 14.05.2014 for evidence of the remaining defendants. It is thus submitted that the impugned order does not require any interference and may be maintained.

I have heard learned counsel for the parties and perused the record with their able assistance.

There is no dispute that the case is pending since 2006 in which the issues were framed as far back as on 22.04.2009 but the zimni orders appended with this petition show that the petitioners have examined their witnesses and in the meantime, various applications were filed because of which the case was adjourned. It is also not in dispute that last opportunities were also given to the petitioners. However, from the zimni orders dated 05.02.2014 to 15.04.2014, recorded by the learned trial Court, one thing is clear that the case was handled in a most casual manner and it appears that the zimni orders were not even recorded by the Presiding Officer himself because he was not even aware as to whether the case is listed for the evidence of the plaintiffs or the defendants. Moreover, the learned Court below has not even cared to abide by the directions issued by this Court in ICICI Bank Ltd. and another''s (supra) and still recorded the zimni orders in a casual manner without recording the names of the advocates who had appeared on behalf of the parties which again shows the casualness in recording the zimni orders which otherwise are most important part of the record as it reflects the proceedings carried out before the Court on a particular day.

Moreover, on 03.05.2014, when the case was received by the transferee Court, it should have at least given one more opportunity to the plaintiffs to lead their entire evidence on the next date of hearing instead of closing the evidence on the same date. Thus, in view of the aforesaid facts and circumstances, the present revision petition is found to be meritorious and hence the same is hereby allowed, however, subject to payment of costs of Rs. 20,000/- by way of demand draft in the name of defendants No. 1 to 4 to the extent of Rs. 5,000/- each and shall be peremptory in nature. In case the costs is not paid, the present revision petition shall be deemed to have been dismissed. It is also made clear that the learned trial Court shall afford only one opportunity to the plaintiffs to lead their entire evidence.