Bhalle Ram vs Abhey Ram and Others

Jaswant Singh, J.—CM No. 7031-CII of 2011 allowed. Copies of various zimni orders are taken on record.

CR 266/2011.

Plaintiff/petitioner by filing the instant revision petition under Article 227 of the Constitution has assailed the order dated 17.11.2010 whereby his suit for permanent injunction was dismissed under Order 17 Rule 3 CPC , by the learned Civil Judge (Junior Division)Narwana.

Plaintiff/ petitioner filed a suit seeking permanent injunction against defendant/respondent restraining him to take illegal or forcible possession of the suit property or to interfere in his possession over the suit land. The said suit was instituted on 24.11.2009. Service upon defendants/respondents was complete on 26.4.2010 who filed written statement and reply to the stay application on 12.5.2010. On that date issues were framed and the case was adjourned to 28.7.2010 for plaintiff''s evidence. On 28.7.2010 no PW was present hence case was fixed for 30.8.2010. Again on 30.8.2010 no PW was present and prayer for adjournment was made on behalf of the planitiff/petitioner. The case was accordingly adjourned to 15.9.2010. On 15.9.2010 again no PW was examined and prayer was made for adjournment. The learned trial Court while granting last opportunity to plaintiff to lead his evidence adjourned the case to 1.10.2010. Still further again on 1.10.2010 the position remained the same and the case was adjourned to 10.11.2010 as last opportunity for PWs. On 10.11.2010 again no PW was present and a date was requested. Accordingly the trial court adjourned the case to 17.11.2010 subject to costs of Rs.500/- by specifically mentioning that plaintiff has already availed several opportunities and it will be the last opportunity for plaintiff evidence. On 17.11.2010 also neither any PW was present nor the costs, as directed vide order dated 10.11.2010 were paid. Accordingly, the trial court passed the following order:

Matter is fixed for conclusion of plaintiff evidence. No such evidence is present. Today is the last opportunity. Costs also not paid. No cogent reason has been put forth for such failure. Hence, evidence of plaintiff is closed under Order 17 Rule 3 Criminal Procedure Code. No admissions have been surfaced in the pleadings of the defendants. So there is no occasion for production of defendants evidence. Arguments heard. Vide my separate judgment of even date, present suit has been dismissed under Order 17 Rule 3 CPC . Parties are left to bear their own costs. Decree sheet be drawn accordingly. File after due compliance be consigned to the record room.

Hence the present revision petition.

The only submission made by the learned Counsel is that the petitioner was confined to bed from 8.11.2010 to 18.11.2010 and as such he could not attend court proceedings on 17.11.2010. It is therefore prayed that the impugned order dated 17.11.2010 be set aside and petitioner be granted opportunity to lead his evidence.

After hearing the learned Counsel and perusing through the various zimni orders placed on record, I find no merit in the submission of the learned Counsel for the petitioner.

As already noticed above the suit was instituted on 24.11.2009. After the completion of pleadings issues were framed on 12.5.2010. The suit of the plaintiff was dismissed under Order 17 Rule 3 CPC on 17.11.2010. In between the plaintiff/petitioner was given as many as five opportunities, including two last opportunities for leading his evidence, however, the petitioner could not examine even a single witness including himself. As regards the absence of the petitioner on 17.11.2010 on account of his illness, I am not inclined to accept the reason put forth in the present revision petition. The petitioner has adopted a very casual approach in pursuing his case and now after his suit has been dismissed under Order 17 Rule 3 CPC , he has come up with the story of his illness. Even if it is assumed that on 17.11.2010 the petitioner was confined to bed, still no reason has been ascribed as to what prevented him from leading his evidence on the previous dates. The manner in which the petitioner has conducted himself dis-entitles him from seeking any relief.

For the reasons stated above,finding no merit in the present revision petition the same is hereby dismissed.