Nirmal Singh vs Lakhbir Singh

L.N. Mittal, J.

CM No. 3392-C of 2011

This application for pre-poning the hearing of the appeal is disposed as having been rendered infructuous.

Main appeal.

Defendant-Nirmal Singh having lost in both the Courts below, has filed the instant second appeal.

In view of limited controversy involved in the instant second appeal, I need not go into detailed facts of the case. Suffice to notice that Respondent-Plaintiff-Lakhbir Singh filed suit against Defendant-Appellant for possession of the suit land by specific performance of the agreement to sell. The Defendant contested the suit by alleging that he is not exclusive owner of the disputed land which is Joint Hindu Family and coparcenery property and could not be alienated without consent and permission of all the family members. The Defendant also denied the alleged agreement to sell claiming it to be forged and fabricated

Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 29.10.2004 decreed the Plaintiff''s suit. First appeal preferred by the Defendant has been dismissed by learned District Judge, Kurukshetra vide judgment and decree dated 18.12.2010. Feeling aggrieved, Defendant has preferred the instant second appeal.

With the consent of counsel for the parties, the instant second appeal is being disposed of at motion stage.

Learned Counsel for the Appellant vehemently contended that the Defendant-Appellant was away to London and, therefore, could not lead any evidence in the suit as he was not intimated about the progress of the suit. It was also contended that on the same ground delay in filing the first appeal has been condoned by Hon''ble Supreme Court vide order dated 19.10.2010 Annexure A-2. It was accordingly prayed that Defendant-Appellant may be granted only one more opportunity to lead his evidence at own responsibility by remanding the suit to the trial Court. The aforesaid prayer has been vehemently opposed by counsel for the Respondent. It was contended that the Defendant-Appellant was not away to London and also it was his duty to remain in touch with his counsel and to know the progress of the suit.

I have carefully considered the rival contentions. Perusal of trial Court file reveals that four effective opportunities in all were granted to the Defendant to lead his evidence and since the Defendant failed to lead any evidence, his evidence was closed by Court order. It is correct that proviso to Order 17 Rule 3 of the CPC lays down that only 3 opportunities are required to be given to each party for its evidence. However, the said provision being procedural cannot be said to be absolutely mandatory. The said provision cannot be followed or enforced with extreme rigidity. There has to be some flexibility in applying the said provision because rules of procedure are handmaids of justice and are meant to advance the cause of justice and not to obstruct or thwart the same.

In view of the aforesaid, I am of the considered view that ends of justice would be served, if another opportunity is granted to the Defendant-Appellant to lead his entire evidence at own responsibility on payment of heavy costs. Substantial question of law as to whether in the facts and circumstances of the instant case, the Defendant deserves another opportunity to lead his evidence, arises for adjudication in the instant second appeal and the same is answered in favour of the Defendant-Appellant for the reasons recorded hereinbefore.

As a necessary upshot, the instant second appeal is allowed. Judgments and decrees of the Courts below are set aside and suit is remanded to trial Court for fresh decision in accordance with law after giving only one more opportunity to the Defendant-Appellant for leading his entire evidence at own responsibility, subject to payment of Rs. 50,000/-as costs precedent. The Defendant may take assistance of the Court to summon evidence, but not more than one opportunity shall be granted to the Defendant even on the ground of non-service of any witness or non-appearance of any witness despite service or on any other ground whatsoever.

Proceedings in execution which have already taken place pursuant to decrees of the Courts below shall stand as it is in the meanwhile, so as to abide by the final result of the suit. File of the trial Court be sent back at once. Parties are directed to appear before the trial Court on 21.04.2011. The Plaintiff shall have right to lead evidence in rebuttal in accordance with law.