Gram Panchayat Dawla and others vs Zile Singh and others

 [1]. This revision petition has been preferred against the orders dated 25.02.2015 and 19.08.2015 passed by the Civil Judge (Jr. Divn.) Jhajjar vide

which evidence of the defendants/petitioners was closed by order of the Court and an application for additional evidence filed by them was also

dismissed.

[2]. Brief facts are that evidence of the plaintiffs started w.e.f. 09.05.2013. It was ultimately closed on 05.08.2014 ranging in more than 11

opportunities in a span of about 1 year 3 month. The evidence of the defendants started w.e.f. 02.09.2014. No DW was present on 02.09.2014, the

case was adjourned for 12.11.2014. Thereafter, the case was adjourned for 22.12.2014, 29.01.2015 and 25.02.2015. On 29.01.2015, the trial Court

granted last opportunity to the defendants to conclude their evidence failing which the evidence of the defendants was to be closed by deeming fiction

by virtue of that order. Deeming fiction was not adhered to and the trial Court again passed an order dated 25.02.2015 closing the evidence of the

defendants by order of the Court. Thereafter the effort made by the defendants to lead additional evidence also went in vain, when the application

was dismissed by the trial Court on 19.08.2015.

[3]. During proceedings of the present revision petition, it was noticed in the order dated 10.10.2017 passed by the Co-ordinate Bench of this Court

that notice to respondent No.2 could not issued for want of correct address, therefore, revision petition qua respondent No.2 was ordered to be

dismissed, leaving the parties to see the effect of such dismissal at the time of disposal of the petition.

[4]. Respondent No.2 is arrayed as plaintiff No.2 before the trial Court. The suit is for permanent injunction and consequential relief of mandatory

injunction. The pleadings made in para No.3 of the plaint are to the following effect:-

“3. That the plaintiffs being proprietors of village Dawla Teh. & Distt. Jhajjar are co-sharers in above mentioned Khasra numbers.The above

mentioned Khasra numbers have not been partitioned by meets and bounds. The plaintiffs got their respective possession from their ancestors and

constructed their residential houses in the abadi deh and are having their Gitwar, Ghair and plots also in the above mentioned Khasra No.96. The plots,

Ghair and Gitwar are reflected in the site plan submitted by plaintiffs along with the plaint. The above mentioned land was never used for common

purposes but has been used by the proprietors since the inception of village. The site plan is attached herewith the plaint and may be read as part of

this plaint.â€​

[5]. At this stage, it will be highly imaginary to foresee the ultimate result of the suit. Even if, the present revision petition is dismissed qua plaintiff

No.2/respondent No.2, still the trial Court would consider the controversy qua other plaintiffs in accordance with law. The fate of the suit cannot be

adjudged at this premature stage so as to draw any inference on account of dismissal of this revision petition qua respondent No.2. In view of above, I

deem it appropriate to consider the controversy on merits.

[6]. Learned counsel for the petitioners submitted that the inaction on the part of the defendants is not such as it would invite harsher impact on their

prospect of leading evidence. In view of ratio of Kailash vs. Nanku and others, 2005(2) R.C.R. (Civil) 379; Sandeep Thapar vs. SME Technologies

Private Limited, 2014(1) R.C.R (Civil) 729 ; Sita Ram and others vs. Gurbax Singh and others, 2013(4) Law Herald 3436;

Sukhjinder Singh @ Sukha vs. Shamsher Singh, 2014(2) Law Herald 1762; Surinder Mittal vs. Pooja Mittal, 2013(1) Law Herald 24 and Salem

Advocate Bar Association, Tamil Nadu vs. Union of India, AIR 2005 SC 3353, the rule of procedure has to be treated as directory even though the

same is couched in a mandatory overtone.

[7]. On the other hand, learned counsel for the respondents by placing reliance upon M/s Shiv Cotex vs. Tirgun Auto Plat P. Ltd., 2011(4) R.C.R.

(Civil) 807, submitted that the proviso to Order 17 Rule 1 CPC has to be meticulously observed. Even though the same is not mandatory and in a

suitable case more than three adjournments can be granted on justifiable cause. Ordinarily the cap provided in the proviso to Order 17 Rule 1 CPC

should be maintained and the justifiable cause as per ratio in the aforecited case should be sufficient cause which would enable the defendants to seek

adjournment beyond the cap of three adjournments. The sufficient cause have been categorized like, (a) sudden illness of the litigant or the witness or

the lawyer, (b) death in the family of any of them and (c) natural calamity like floods, earthquake etc.

[8]. Learned counsel further submitted that no reasons much less sufficient reasons have come forth for not leading the evidence despite four

adjournments.

[9]. I have considered the submissions made by learned counsel for the parties.

[10]. Perusal of the record would show that the defendants were granted only four opportunities. The fifth opportunity i.e. on 25.02.2015 was a

consequence of the deeming fiction which was ordered on 29.01.2015. There was an omission on behalf of the defendants in not leading their

evidence in time. It can be noticed that the evidence of the defendants started w.e.f. from 02.09.2014. The fourth adjournment was on 29.01.2015 and

on that very day last opportunity was granted with a deemed fiction that in the event of not leading evidence on 25.02.2015, the same was to be

deemed closed.

[11]. In my considered opinion, the law of procedure is a handmaid of justice. Keeping in view the nomenclature of defendant No.1 i.e. Gram

Panchayat Dawla, I deem it appropriate to grant one more opportunity to the defendants/petitioners to conclude their evidence on their own

responsibility. Consequently, the impugned orders dated 25.02.2015 and 19.08.2015 passed by the Civil Judge (Jr. Divn.) Jhajjar are hereby set aside.

This revision petition is allowed, however subject to payment of Rs.15,000/- as costs to be paid to respondents/plaintiffs Nos.1, 3, 4, 6 to 9 and 12 to 14

as petition qua respondent No.2 has already been dismissed and respondents No.5, 10 and 11 have already been proceeded ex parte vide order dated

28.09.2016 passed by the Co-ordinate Bench of this Court.

[12]. Payment of costs shall be the condition precedent for granting indulgence by the trial Court in the aforesaid context.