Dr. Balbir Singh vs Ghanshyam Singh and Others

L.N. Mittal, J.—This is second appeal by plaintiff Dr. Balbir Singh having lost in both the courts below. I need not go into merits of the case in view of the order I propose to pass after having heard counsel for the parties and having perused the records including records of the courts below.

Perusal of file of the trial court reveals that issues in the case were framed on 23.7.2005 and the case was adjourned to 5.9.2005 for evidence of plaintiff. On 5.9.2005, no witness of the plaintiff was present. Instead of leading evidence, the plaintiff moved application for temporary injunction on 5.9.2005. The said application was dismissed by the trial court vide order dated 15.12.2005 and the case was adjourned to 13.2.2006 for evidence of the plaintiff. However, it happened to be holiday on 13.2.2006 and the case was taken up on 14.2.2006 and adjourned to 30.3.2006 for evidence of the plaintiff. No evidence of the plaintiff was present on the said date and the case was adjourned to 4.5.2006. On 4.5.2006, the plaintiff himself appeared in the witness box and tendered his affidavit of examination-in-chief and his cross-examination was deferred. No other witness of the plaintiff was present. On request of counsel for the plaintiff. case was adjourned to 7.6.2006 for cross-examination of the plaintiff as well as for remaining entire evidence of the plaintiff, giving last and final opportunity for the same. However, it appears that before 7.6.2006, the file was sent to court of Additional District Judge in appeal preferred by the plaintiff against order dated 15.12.2005 whereby application for temporary injunction was dismissed by the trial court. Accordingly, on 7.6.2006, on a separate plain paper, the case was adjourned to 30.9.2006 for awaiting file and again on 30.9.2006, the case was adjourned to 31.1.2007 for awaiting the file. Both these orders were passed on separate sheet. Trial court file was not there in the trial court on 7.6.2006 whereas the file was not tagged on 30.9.2006 in view of intervening development. In appeal in temporary injunction matter, learned Additional District Judge vide order dated 18.7.2006 directed in the presence of counsel for the plaintiff/appellant that the trial court records be returned forthwith for being dealt with on 8.8.2006 for the evidence of the plaintiff. Accordingly, the file was put up in the trial court on 8.8.2006 but no evidence of the plaintiff was present and case was adjourned to 28.9.2006 for evidence of the plaintiff with last opportunity. On 28.9.2006 also, no evidence of the plaintiff was present and the case was adjourned to 30.11.2006 with last and final opportunity and on payment of costs. However, even on 30.11.2006, no witness of the plaintiff was present. Consequently, evidence of the plaintiff was closed by court order and there being no evidence on behalf of the plaintiff, suit was dismissed vide separate judgment and decree of even date. First appeal preferred by the plaintiff has been dismissed by the lower appellate court. Feeling aggrieved, the plaintiff has filed this second appeal.

Counsel for the appellant contended that the file was not put up before the trial court on 8.8.2006, 28.9.2006 and 30.11.2006 and, therefore, there was no occasion for the trial court to close the evidence of the plaintiff by court order and to dismiss the suit. Affidavit of plaintiff-appellant as well as his counsel Ms. Neeta Pathania representing the plaintiff in the trial court as well as in miscellaneous appeal in the matter of temporary injunction were filed in the instant second appeal to the aforesaid effect. Thereupon, comments of the Additional District Judge as well as concerned Civil Judge were called for and have been received. As per said comments as well as orders of the trial court, it is evident that Additional District Judge sent back the trial court file to the trial court vide order dated 18.7.2006 for 8.8.2006 and accordingly file was put up before the trial court on 8.8.2006 as well as on subsequent dates of hearing i.e. 28.9.2006 and 30.11.2006. Consequently, the aforesaid contention raised by counsel for the appellant is patently false and not acceptable and is contrary to record. It is highly significant to notice here that admittedly Ms. Neeta Pathania, Advocate (who is wife of Mr. SS Pathania, Advocate representing the appellant in the instant second appeal) was representing the plaintiff-appellant in the trial court as well as in the lower appellate court in appeal in the matter of temporary injunction. Order dated 18.7.2006 by the Additional District Judge was passed in the said appeal in the presence of counsel for the appellant and consequently it does not lie in the mouth of the appellant or his counsel that the trial court file had not been received back in the trial court or that file was not put up before the trial court on 8.8.2006, 28.9.2006 and 30.11.2006. This conduct of the appellant is strongly deprecated. He has to be subjected to heavy costs for the same.

Counsel for the appellant stressed that vide order dated 30.9.2006, the case was adjourned to 31.1.2007 for awaiting the file. However, it happened because the said order dated 30.9.2006 was passed on a separate sheet of paper, with which the file of the trial court although already received was not attached by the concerned Ahalmad because the file had in the meantime been put on 8.8.2006 as per order of Additional District Judge and again put up on 28.9.2006 and adjourned to 30.11.2006. It appears that the Ahalmad could not coordinate the file with the separate sheet which was lying for awaiting the file from the appellate court although the file had already been received in the trial court on 20.7.2006 (for 8.8.2006) pursuant to order dated 18.7.2006 of the Additional District Judge. Consequently, the appellant cannot take advantage of the order dated 30.9.2006 passed on separate sheet of paper.

Having said as aforesaid, I am of the considered opinion that in the peculiar facts and circumstances of the case, ends of justice would be met if only one more effective opportunity is granted to the plaintiff/appellant for his remaining evidence including his own cross-examination, but the appellant has to be subjected to heavy costs for the same in view of his conduct noticed hereinbefore and also because he had already been granted six effective opportunities by the trial court for his evidence and further because even the regular first appeal was not filed by him within limitation. Accordingly, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside. The suit is remanded to the trial court for fresh decision in accordance with law. The plaintiff-appellant shall be granted only one more effective opportunity for his remaining evidence at own responsibility subject to payment of Rs. 50,000/-as costs precedent. Records of the courts below be sent back at once. Parties are directed to appear in the trial court on 16.10.2012. The trial court shall decide the suit as expeditiously as possible.