Gurbanchan Singh vs Prem Nath

R.L. Anand, J.—This is an appeal against the judgment'' and decree dated 15.10.1987 passed by the Additional District Judge, Ludhiana, who accepted the appeal of Prem Nath respondent and set aside the judgment and decree of the trial Court dated 13.12.1983, which decreed the suit of the plaintiff-appellant.

Gurbachan Singh, present appellant, filed a suit for declaration to the effect that he was owner in possession of the suit land measuring 24 kanals situated in the revenue estate of Sherpur Kalan, Tehsil and District Ludhiana and that he had been, cultivating the same since 1957 as owner ''Billa Lagan'' and that the change in the entry of Khasra girdwari and jamabandi for the year 1973-74 and subsequent entries showing the cultivation of the plaintiff on payment of rent of Rs. 1,200/- was wrong, incorrect, void, illegal and not binding on the rights of the plaintiff and the same is liable to be rectified. The plaintiff also filed a suit for injunction restraining the defendant and interfering in his possession.

The suit was contested by the defendant on various pleas and the trial Court framed the following issues:-

Whether the plaintiff is debarred from filing the present suit under Order XXIII Rule 1 C.P.C.? OPD

Whether the Civil Courts have no jurisdiction to try the present suit? OPD.

Whether this suit is liable to be stayed? OPD

Whether the plaintiff is a tenant at will of the defendant? OPD

Whether the plaintiff discloses any cause of action? If so, its effect. OPP

Whether the suit is within limitation? OPP

Whether the Civil Courts have no jurisdiction to try the present suit? OPD

Whether the suit is properly valued for the purposes of Court fee and jurisdiction? If so, its effect? OPP

Whether the plaintiff is entitled to the declaration prayed for? OPP

Whether the plaintiff is entitled to the injunction prayed for? OPP

Relief.

The plaintiff led the evidence and closed his case on 2.8.1983 and the suit was adjourned to 7.9.1983 for the evidence of the defendant. The defendant could not deposit the process fee and diet money of the witnesses and the case was adjourned to 5.10.1983 for the evidence of the defendant subject to costs. On that day the defendant examined Bhagwant Singh and again the case was adjourned to 25.10.1983 and the defendant was directed to bring his entire evidence. On 10.10. 1983 the defendant submitted two applications in which he stated that issue No. 8 may be treated as preliminary and the second application was for resummoning the plaintiff for further cross-examination. Both the applications were dismissed. On 25.10.1983 no DW was present as a result of which the case was adjourned to 13.12.1983 on the undertaking given by the defendant that he will bring the entire evidence. On that day again the defendant failed in his commitment as a result of which his evidence was closed by the order under Order 17, Rule 3 C.P.C. Finally, the trial Court decreed the suit of the plaintiff-appellant vide judgment and decree dated 13.12.1983.

Aggrieved by the judgment and decree of the trial Court, Prem Nath defendant-respondent filed the appeal in the Court of Additional District Judge, Ludhiana, which for the reasons given in paras No. 7 and 9 of the judgment set aside the judgment and decree of the trial Court and remanded the case to the trial court with the direction to decide the case afresh after giving opportunity to the defendant to lead his evidence.

This time the plaintiff is aggrieved by the judgment and decree dated 15.10.1987 and has filed the present appeal.

I have heard Mr. O.P. Hoshiarpuri, Advocate on behalf of the appellant and with his assistance I have gone through the records of this case.

Before I deal with the submissions raised by the learned counsel for the appellant, I would like to quote in verbatim the reasons given by the first appellate Court when it allowed the appeal of the defendant which are as under:-

"7. Issues in this case were framed on 30.4.1982 and the plaintiff closed his evidence on 2.8.1983. The case was then adjourned to 7.9.1983 for the evidence of the defendant. On the adjourned date as no evidence of the defendant was present, the case was adjourned to 5.10.1983 on payment of Rs. 20/- as costs directing that the defendant shall produce his entire evidence on his own responsibility. On that date, the defendant examined one witness and paid costs awarded by the Court. As no other evidence was present, on the request of the defendant, the trial Court gave him one more opportunity after recording his statement for this prayer to produce his evidence on 25.10.1983 at his own responsibility. It was further directed that dasti summons shall be taken by the defendant and the witnesses served. It was made clear that this was a two year old suit and the defendant would not get any other opportunity. The defendant deposited the diet money and paid process fee for the service of the witnesses, but the summons were not issued or given dasti. Statement of defendant was also recorded and the case was adjourned to 13.12.1983. Then on 13.12.1983, the defendant made statement in court that he will examine himself after his witnesses were served and examined. At 12.30 noon on 13.12.1983 the court ordered the defendant to produce his evidence at 2.30 p.m. on that date failing which his case will be closed. Having waited till 4.00 p.m. defendant did not appear and the Court closed the case of the defendant under Order 17 Rule 3 C.P.C. after hearing arguments of the counsel for the plaintiff.

Learned counsel for the appellant has argued that the order of the Trial Court closing the case of the plaintiff was biased and not justified. According to him after framing issues in this case on 30.4.1982 a long rope was given to the plaintiff to examine his evidence which he closed on 2.8.1983. When the turn of the defendant came to lead his evidence, on the very first hearing on the adjourned date for the evidence of the defendant besides awarding costs against the defendants, he was required to produce his entire evidence at his own responsibility. It was only at that stage that the attention of the presiding officer was attracted to the effect that the case has become 2 years old, although it was for no fault of the defendant. One year and four months had been consumed by the plaintiff in producing his evidence. During the period of 4 months from 7.8.1983 to 13.12.1983, the case was adjourned thrice. The defendant did examine one witness and deposited diet money and process fee for the service of his witnesses on 10.10.1983. Almost all the witnesses sought to be examined by the defendant were Govt. Officials who included patwaris, clerks in the District Courts and Assistant Collector 1st Grade. These witnesses could not be served except through the process serving agency and the defendant could not be fastened with the responsibility to take dasti summons and produce the witnesses. The manner in which the case of the defendant was closed on 13.12.1983 requiring him to produce witnesses within 2 hours on that date speaks volumes per se and needs no further comments except that the approach of the presiding officer in the disposal of this case was unreasonable and not justified in the circumstances of the case. Once this conclusion is arrived at, judgment and decree of the trial Court which was passed in the absence of any evidence of the defendant cannot be sustained. The result, therefore, is that the judgment and decree of the trial Court are set aside and the case is remanded for fresh decision after an opportunity is given to the defendant to lead his evidence. The parties have been directed to appear in the Court of Shri S.K.. Sharma, Sub Judge, 1st Class, Ludhiana, the successor Court of Shri S.S. Sandhu, Sub Judge, 1st Class, Ludhiana on 9.11.1987 for further proceedings."

Mr. Hoshiarpuri submitted that in this case the defendant was negligent right from the very beginning. His intention was to delay the case of the plaintiff. He was given sufficient time to lead the evidence. So much so, the defendant gave the undertaking before the trial court that he would bring the entire evidence at his own responsibility on 25.10.1983. A long rope was given to the defendant and still he did not lead the evidence as a result of which the trial Court rightly closed the defence of the defendant.

I find merit in the contentions raised by the learned counsel for the appellant. In this case the issues were framed on 30.4.1982 and the plaintiff closed his evidence on 2.8.1983 and then the case was adjourned to 7.9.1983 for the evidence of the defendant. On that day no witness of the defendant was present as a result of which the case was adjourned to 5.10.1983 for the evidence of the defendant subject to costs. On this date only one witness was examined by the defendant. Under the procedure he was supposed to come in the witness-box at the first instance. Still the defendant was given one more adjournment to 25.10.1983. So much so, assistance was given to the defendant to take the summons dasti for the service of his witnesses. On 25.10.1983 the defendant categorically stated before the trial court that he did not take the summons dasti as promised by him in his earlier statement made on 5.10.1983. He also gave an undertaking before the trial Court that on the next date he shall complete his evidence at his own responsibility. Though there was hardly any justification to further adjourn the case on 25.10.1983, still in view of the fresh undertaking given by the defendant the case was adjourned to 13.12.1983, with a clear understanding to the defendant that in case he does not bring the evidence on the adjourned day, his evidence will be closed by order. No witness was again present on 13.12.1983. It appears from the proceedings dated 13.12.1983 that the defendant was very much adamant and at no cost wanted to assist the justice. The proceedings dated 13.12.1983 can be quoted as follows:-

"Statement of defendant Prem Nath:

Today no witness of mine is present or served for today. I will examine myself last of all and I will examine my witness first. I am not prepared to step into the witness box myself today. Another adjournment be granted for the service of my summoned witnesses."

The law is not so weak as understood by the defendant. On 13.12.1983 the Court wanted to accommodate the defendant and time was given to him to bring the witnesses. The following order of the trial Court will indicate the conduct of the defendant:

"No witness of the defendant is present today. The suit is pending for the evidence of the defendant w.e.f. 2.8.1983. This is an old history sheeted suit. The defendant was granted adjournment to produce his evidence on 7.9.1983 on the written undertaking of the defendant to produce his entire evidence on the next date, the suit was adjourned to 5.10.1983 for the evidence of the defendant subject to the payment of Rs. 20/- as costs. On 5.10.1983 only one D.W. was present and he was examined on that date, the defendant made a statement in writing that he is not prepared to examine himself till the files summoned by him are received and the suit was adjourned to 25.10.1983 for the evidence of the defendant. No. 25.10.1983 no witness of the defendant was present. On that date on the written undertaking of the defendant that he would close his evidence the next date, the suit was adjourned to 23.12.1983 for the entire evidence of the defendant and it was made clear to him that no adjournment would be granted to him after 13.12.1983. Today again no DW is present. The defendant has made a written statement in the court that he is not prepared to examine himself unless his other witnesses are served. The defendant is advised to bring his witnesses at 2.30 p.m. today, failing which his evidence be closed by order."

When the case was called at 2.30 p.m. on 13.12.1983 neither the defendant not his witnesses were present and the Court had to wait upto 4.00 p.m. When the case was again called at 4.00 p.m. on 13.12.1983 the defendant did not appear nor brought any witness and the trial Court was justified in saying that it was satisfied that defendant is trying to delay the matter deliberately and that it had no other option but to close the evidence of the defendant under Order 17 Rule 3 C.P.C. Arguments were heard and the suit of the plaintiff was decreed on 13.12.1983 itself.

Thus the chain of orders passed by the trial Court would show that sufficient time was granted to the defendant to rebut the case of the plaintiff. He appears to be head-strong. It is true that justice should not be scuttled on the threshold of procedure, but procedure is also a solemn one which is supposed to be respected by the parties. It cannot be said in this case that the trial Court committed haste in closing down the evidence of the defendant. Throughout from the very beginning the intention of the defendant was not clear and clean. He wanted to drag the proceedings. The first appellate . Court has not taken note of all these facts. Therefore, I allow this appeal, set aside the judgment and decree of the first appellate Court dated 15.10.1987 and give the directions to the first appellate Court, i.e. the successor Court of Mr. Dina Nath Sharma, to re-admit the appeal to its original number and dispose of the same on merits after giving notice to Prem Nath defendant.

Appellant Gurbachan Singh shall appear before the first appellate court on 27.9.1999.