Krishan Kumar Sardana vs Sita Ram Adalakha and Another

Sham Sunder, J.—This revision petition is directed against the order dated 2.1.2009, rendered by the Court of Civil Judge (Senior Division) Faridabad, vide which the evidence of the objector-petitioner during the course of execution petition was closed.

The petitioner claimed himself to be a tenant, in the disputed premises, comprising two shops wherein he has been running his clinic as Doctor since 1973. It was stated that the premises, in dispute were let out to him by Hari Chand son of Smt. Sobai Bai who was the owner of the same and after her death, the same were inherited by her sons Hari Chand and Sita Ram. During her life time, Smt. Sobal Bai, filed a civil suit No. 551 dated 21.10.1991 against one Hans Raj son of Ganesh Dass, for possession by way of redemption, which was decreed, in respect of the disputed shops bearing Nos. 1 and 3, in her favour, on deposit of mortgage amount of Rs. 2,000/- in the court within one month from 11.4.1994 (the date of decree). It was further stated that likewise, another Civil Suit No. 552 dated 21.10.1991 for possession by way of redemption against Subhash Chand son of Bodh Raj was also decreed ex parte in respect of shop Nos. 2 and 4, on deposit of mortgage amount of Rs. 2,000/- within one month from the date of decree (11.04.1994). It was further stated that in the execution petition against Hans Raj and Subhash Chand, the petitioner, who claimedhimself tenant in shop Nos. 3 and 4, filed an objection petition u/s 47 of the CPC on various grounds inter alia that he could not be ejected from the tenanted premises, in execution of the said decrees. In that execution petition, as many as six witnesses were examined by the petitioner. Hari Chand, OW stated that no receipt was issued by him, nor any receipt was scribed by him. The petitioner then deposited an amount of Rs. 270/- as diet money of three witnesses which were yet to be examined by him but the Executing Court, closed his evidence vide the order impugned.

Feeling aggrieved, the instant revision petition was filed by the petitioner.

I have heard the counsel for the parties, and have gone through the documents, on record carefully.

The counsel for the revision petitioner, submitted that there was no default on the part of the revision petitioner, in examining the witnesses. He further submitted that he had deposited the diet money of three witnesses, who are yet to be examined and it was the duty of the court to summon them and, if after due service they failed to appear in the Court, then procure their service through coercive process. He further submitted that on account of the passing of the order dated 02.01.2009, closing the evidence of the petitioner in the objection petition, a manifest injustice has occasioned to him. He further submitted that the order impugned be set aside and the petitioner be granted sufficient opportunity to lead his evidence.

On the other hand, the counsel for the respondents submitted that, as many as five opportunities were granted to the petitioner, during the course of execution proceedings, for leading his evidence but he could not conclude the same. He further submitted that the trial Court was thus right in closing the evidence. He further submitted that once Hari Chand, a witness produced by the petitioner, during the course of execution proceedings, denied the execution of receipt showing the petitioner to be tenant in the demised premises, no other witness could be examined by him (petitioner) to nullify the statement of Hari Chand, his own witness. He further submitted that the order dated 2.1.2009, does not suffer from any illegality and is liable to be upheld. After giving my thoughtful consideration to the rival contentions, raised by the counsel for the parties, in my considered opinion, it is a fit case, in which the order impugned deserves to be set aside, for the reasons to be recorded hereinafter. From the order dated 2.1.2009 it is evident that four witnesses of the objector were present on that date. Those witnesses were examined. The other witnesses were not present, nor they were served. In case the diet money had been deposited by the petitioner for summoning the witnesses, then it was the duty of the court, to effect their service. Whatever the case may be, if the order dated 2.1.2009 is not set aside a manifest injustice shall be caused, to the petitioner as in that event he will not be able to prove his right of tenancy in the property, in dispute. No doubt it cannot be said that there was no negligence, at all, on the part of the petitioner in concluding the evidence. The objection petition was filed on 30.1.2002 and had the petitioner taken effective steps, to conclude his evidence, the objection petition would have been decided by now. However, on account of the negligence of the petitioner, he cannot be penalized, to such an extent as may occasion injustice to him. The procedure is, in the ultimate, the hand-maid of justice, meant to advance the cause thereof than to thwart the same. The procedural wrangles cannot be allowed to stay, in the way of grant of substantial justice. If the substantial justice and the procedural wrangles are pitted against each other, then the former will prevail over the latter. In The State of Punjab and Another Vs. Shamlal Murari and Another, , the principle of law, laid down was to the effect, that the procedure is, in the ultimate the hand-maid of justice and not its mistress and is meant to advance its cause and not to obstruct the same. A procedural rule, therefore, has to be liberally construed, and care must be taken, that so strict an interpretation be not placed thereon, whereby technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provision, may result in me stifling of the material evidence of a party, even if for adequate reasons, which may be beyond his control. We must always remember that procedural law is not to be a tyrant, but a servant, not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid and not mistress, a lubricant not a resistant in the administration of justice. If the breach can be corrected without injury to a just disposal of the case the Court should not enthrone a regulatory requirement into a dominant desideratum. After all the courts are to do justice, not to wreck this end-product, on technicalities. The principle of law, laid down in the aforesaid case, is fully applicable to the facts of the present case. In this view of the matter, the order dated 2.1.2009 is liable to be set aside, though the opposite party can be compensated by way of costs. 8. For the reasons recorded above, the revision petition is accepted. The order dated 2.1.2009 rendered by the court of Civil Judge (Senior Division) Faridabad, is set aside. The petitioner shall be granted two reasonable opportunities to lead his evidence, in the objection petition, commencing from 24.8.2009, subject to payment of Rs. 1,000/- as costs to the opposite party. In case the petitioner failed to produce evidence, in two opportunities to be granted to him, the executing Court shall be at liberty to close his evidence. Payment of costs shall be a condition precedents. The parties are directed to appear, in the trial Court on 24.8.2009 at 10.00 A.M. positively.