Mahendra Kumar Parashar vs Ram Krishna Parashar & Others

This petition under Article 227 of the Constitution of India has been filed challenging the order dated 13th March, 2019 passed by Additional Civil Judge, Class-I, Pichore, District Shivpuri in Regular Civil Suit No.4-A/2014, by which the application filed by the petitioner under Section 151 of CPC has been rejected.

The necessary facts for the disposal of the present petition in short are that the plaintiff/ respondent No.1 has filed a suit for declaration of title, permanent injunction as well as for declaration that the judgment and decree dated 23/6/1967 is null and void. It appears that after the plaintiff closed his case evidence, the case was fixed for recording of defence evidence. The petitioner has filed some of the order sheets of the Trial Court which starts from 22nd August, 2017, according to which the case was already fixed for recording of defence evidence. On 24the November, 2018, as the defence witnesses were not present, therefore, the case was adjourned for 3rd December, 2018 for recording the defence evidence. On 3rd December, 2018, one defence witness was examined, however, his cross-examination could not be completed, therefore, the case was adjourned to 05th December, 2018 for remaining cross-examination of this witness, as well as for reply and arguments on certain applications. On 05th December, 2018, the defence witness Satish Prakash Sharma, whose evidence could not be completed on the previous date was present, however, he had some injuries on his body, therefore, the Trial Court after considering his physical condition, deferred the cross-examination and fixed the case to 14th December, 2018. On 14th Decemeber, 2018, Shri Upendra Sharma, filed a ''Vaklatnama'' on behalf of defendant No.3. The defence witness Satish Prakash Sharma was cross-examined and the case was fixed for recording the remaining defence witnesses on 20th December, 2018. On 20th December, 2018, the defence witness Naresh Parashar was cross-examined. The case was fixed for 7th January, 2018. Even on 07/01/2019, at the request of the counsel for the petitioner the case was adjourned to 14th January, 2019. However, as the new counsel for the petitioner was engaged, therefore, the memo of appearance was filed on behalf of the petitioner and the Trial Court granted short adjournment with a direction to the defendants to keep all their witnesses present on the next date of hearing, accordingly, the case was adjourned to 17th January, 2019 for examination of remaining defence witnesses. Then, on 17th January, 2019, at the request of counsel for the petitioner, the case was adjourned. On 19th January, 2019, an application under Order 17 Rule 1 of CPC was filed on behalf of the petitioner that the petitioner has gone to Shri Sadguru Netra Chikishyalay, Lateri, District Ashok Nagar for treatment of his eyes and, therefore, he may be granted time and he would be in a position to give his evidence after three-four days, however, it appears that the Trial Court has rejected the application. Although the order-sheets which have been filed by the petitioner, clearly shows that the complete order sheet dated 19th January 2019 has not been placed on record, but it was submitted by the counsel for the petitioner that the incomplete copy has been provided by the Copying Section of the District Court only.

Be that whatever it may.

It is the contention of the counsel for the petitioner that on 19th January, 2019 the right of the petitioner to lead the defence evidence was closed. On 1st March, 2019, the petitioner filed an application under Section 151 of CPC and the said application has been rejected by the Trial Court by order dated 13th January, 2019 and has fixed the case for final arguments. It is submitted by the counsel for the petitioner that in fact, the petitioner was not well and he had gone to Shri Sadguru Netra Chikshyalay, Lateri, District Ashok Nagar for treatment of his eyes, therefore, there was a valid reason for him not appearing before the Trial Court on 19th January, 2019. However, the counsel for the petitioner fairly conceded that the petitioner does not have any document to show that the petitioner had ever gone to Shri Sadguru Netra Chikshyalay, Lateri, District Ashok Nagar, but submitted that when the petitioner went to the Hospital, then his eyes were checked and he was told that he has no problem in his eyes and, therefore, no OPD Card or any medical prescription was given to petitioner. Thus, it is clear that the explanation given by the petitioner that no OPD Card or medical prescription given by the doctors is nothing but an afterthought. On 14th January, 2019 itself, it was specifically mentioned that on the next date of hearing, the petitioner should keep all his witnesses present before the Court, therefore, the petitioner was well aware of the fact that the case is fixed for recording of the evidence on 17th and thereafter on 19th January, 2019. Even for the sake of arguments, if it is accepted that the petitioner had gone to Shri Sadguru Netra Chikshyalay, Lateri, District Ashok Nagar for treatment of his eyes, then it is clear that he was not under medical compulsion to go to the Eye Hospital. Even according to the petitioner, the doctor did not find any disease in the eyes warranting medical treatment of the petitioner. Thus, it is clear that the petitioner was not under medical compulsion to immediately to go to the Eye Hospital and he would have come to the Court for giving his evidence. Thus, this Court is of the considered opinion that the petitioner deliberately did not appear before the Court on 19th January, 2019 knowing-fully that it was the last opportunity for him to appear and give his evidence. Under these circumstances, this Court is of the considered opinion that the petitioner was deliberately trying to delay the trial proceedings, which cannot be appreciated.

So far as the rejection of application filed by the petitioner under Section 151 of CPC is concerned, under the facts and circumstances of the case, this Court is of the considered opinion that the petitioner could not point out any jurisdictional error committed by the Trial Court because the Trial Court is the best-judge to consider the conduct of the parties and once after considering the conduct of the parties, the Trial Court has come to a conclusion that the petitioner has deliberately avoided to appear on the date which was fixed for recording his evidence, then the said discretion should not be interfered with very lightly by this Court. Accordingly, the order dated 13th March, 2019 passed by Additional Civil Judge, Class-I, Pichore, District Shivpuri in Regular Civil Suit No.4-A/2014, rejecting the application filed by the petitioner under Section 151 of CPC, is hereby affirmed.

Resultantly, this petition fails and is hereby dismissed.