Daljit Kaur and others vs Bishan Singh (died) through his legal Representatives Surjit Kaur and others

S.D. Bajaj, J.

Instead of attacking the judgment recorded by the learned trial Court and the learned First Appellate Court on merits on the basis of defendantappellants'' rival claims of title to the land, in dispute, learned counsel for the detenantappellants adverted to different orders passed by the learned trial Court from 6.10.1975 to 15.4.1976 to substantiate the allegations obtaining in paragraphs 4 to 6 of the Grounds of Appeal suggesting denial of a fair and reasonable opportunity to defendantappellants to adduce their evidence which, according to their learned counsel, had resulted in complete failure of justice by closure of their evidence in terms of Order XVII Rule 3, Code of Civil Procedure, on 15.4.1976.

Evidence of plaintiffrespondent in Civil Suit No. 93 instituted on 3.4.1970 was closed on 8.10.1975 nearly 5 1/2 years after the institution of the suit. On 6.10.1975 the case was adjourned to 24.11.1975 for evidence of defendantappellants. No evidence having been summoned for the State, the case was on 24.11.1975, adjourned to 23.12.1975 for evidence of defendantappellants. Plaintiffrespondent was awarded Rs. 25/ (Rupees twentyfive only) as costs for failure of defendantappellants to summon their evidence for 24.11.1975. On 23.12.1975 the costs imposed on 24.11.1975 were duly paid. A written request was made by defendantappellants for being allowed to produce D.Ws. The case was adjourned to 29.1.1976 for their production During this period after 23.12.1975 and before 29.1.1976 defendantappellants summoned five witnesses, namely, Babu Ram, Shrimati Daljit Kaur, Gurchet Singh, Jora Singh and Sardara Singh through the process serving agency of the Court after depositing Rs. 27/ (Rupees twentyseven only) as their diet money, vide Civil Nazir''s deposit receipt No. 4703 dated 12.1.1976 and also allegedly putting in the processfee for summoning them. On 29.1.1976 the Presiding Officer was away to Ferozepur and Jullundur and, therefore, the file was put up before him on the following day, viz 30.1.1976. On this date, it was adjourned to 15.3.1976 for defendants'' evidence. Unmindful of the written request made on 23.12.1975 and the deposit of diet money and process fee for summoning five witnesses aforesaid on 12.1.1976, learned trial Court observed in its orders dated 15.3.1976 :

"No D.W. nor summoned. The defendants to bear costs of Rs. 30/ and arrange D.W. on 15.4.1976. Last opportunity. P.F., if any, within 2 days."

The order passed on 15.4.1976 reads :

"No D.W. despite last date nor costs paid. Case has been hanging fire for a long time. Plaintiff closed his evidence on 6.10.1975 and thereafter no D.W. has been examined. The case of the defendant is closed. Even none of the defendants is present, Announced."

It would thus appear that all orders passed after 23.12.1975 were passed by the learned trial Court in sheer ignorance of factual position obtaining in the case with regard to summoning of witnesses by defendantappellants on 12.1.1976. For the adjournment on 29.1.1976 it need only be mentioned that it was occasioned on account of Presiding Officer of the Court himself being out of station and for no fault of defendantappellants. Proceedings before the learned trial Court have thus resulted in miscarriage and failure of justice.

Strangely enough, defendantappellants brought these facts to the notice of the learned Court of First Appeal as well to suggest that the learned trial Court closed their evidence without cogent grounds. The prayer, however, fell on deaf ears and instead of adverting to factual position of record of the learned trial Court, learned Court of First Appeal brushed the argument aside holding that defendantappellants were themselves to blame for it as they had not summoned any witness during the period 6.10.1975 to 15.4.1976. Observations made by the learned Court of First Appeal in this regard are, however, contrary to the factual position obtaining in the case, Nathi `B'' containing the record of the application mentioned in the Zimni order dated 23.12.1975, processfee put in by defendant appellants to summon five witnesses in respect of whom dietmoney was deposited, vide Civil Nazir''s receipt No. 4703 of 12.1.1976 is not forthcoming. Learned counsel for defendantappellants has, however, placed on record the secondary evidence of the alleged deposit marked `X'', which contains the number, date on which the dietmoney was deposited the names of all the five witnesses summoned and the amount of diet money got deposited for every one of them individually. It clearly shows that the allegation of denial of opportunity to adduce defence evidence before thee learned trial Court is wellfounded and not in the air.

This Court has held times out of number in Faqir Chand Dhobi v. Smt. Mohinder Kaur, 1977(2) Rent Law Reporter 633; Dr. Harbhajan Singh Sodhi v. Dr. Ranbir Singh, 1977(2) Rent Law Reporter 684; Om Parkash Wedehra v. Shri Roshan Lal and others, 1983(2) RCR(Rent) 645 : 1984(1) R.L.R. 159; and Hakam Singh v. Jodh Singh and others, 1984(1) R.C.R. 505 : 1984(1) Rent Law Reporter 342, that in the circumstances like the ones obtaining in the present case, order regarding closure of evidence is legally not sustainable. Learned trial Court is to be regarded to have acted illegally and with material irregularity while passing the order regarding closure of evidence of defendant appellants on 15.4.1976. In such a situation, the proper course for the learned trial Court was to have made an enquiry and found out if the process fee was or was not paid by the learned counsel as was stated by him at the Bar. If the processfee was deposited, as was stated by him at the bar, then it was for the Ahlmad to have issued the notices to the witnesses and there was no fault of the defendantappellants if the witnesses were not present or notices were not issued. The Court are required to do justice. The whole file should have been looked into by the learned trial Court. In the circumstances of the case, as stated above, it cannot be said that the defendantappellants were even guilty of delaying the proceedings. In fact the defendentappellants performed their part of the duty while apparently the Ahlmad of the clerk concerned did not do his part of the duty in issuing the summons to the witnesses. By closing the evidence of the defendantappellants, the learned trial Court has acted illegally and with material irregularity in exercise of its jurisdiction. Consequently, the impugned order cannot legally be sustained.

For the reasons recorded above, I allow the Regular Second Appeal, set aside the order of the learned trial Court dated 15.4.1976 and direct that the defendantappellants would be afforded an opportunity to lead their evidence in accordance with the law.

Parties through their learned counsel have been directed to appear before the learned trial Court on 18.12.1987.