Sandeep Kumar vs Rakesh Kumar and Another

K.K. Srivastava, J.—This is a revision petition filed against judgment dated 9th February, 1998 passed by the Additional District Judge, Jagadhri vide which Civil Appeal No. 41 of 1996 preferred against judgment and decree dated 10th October, 1996 passed by Shri M.C. Mehra, Additional Civil Judge (Senior Division) Jagadhri in Civil Suit No. 233 dated 30th April, 1993 tilted as Sandeep Kumar v. Rakesh Kumar and Anr. was dismissed.

The petitioner, Sandeep Kumar filed the aforesaid Civil Suit for the relief of the declaration to the effect that he was the owner in possession of plot No. 386 situated in Sarojini Colony, within the Municipal limits of Yamunanagar and also for the relief of mandatory injunction directing the respondent No. 2-Improvement Trust, Yamunangar to receive the balance instalments of the said plot from the plaintiff and for permanent injunction restraining the defendants i.e. Improvement Trust, Yamunanagar and Rakesh Kumar son of Shri Ved Parkash from interfering in actual physical possession of the plaintiff in respect of the said plot and/or from raising any construction forcibly on the said plot. After the service of the summons defendant Nos.l and 2 who are respondents in this revision put in appearance through their counsel and filed their written statements to the plaint filed by the petitioner. The learned trial Court framed issues arising out of the pleadings of the parties and listed the case for recording of plaintiffs evidence. As many as 11 issues were settled on 23rd January, 1995 which are mentioned in para 8 of the judgment. The case came up for hearing on 10th October, 1996 before Additional Civil Judge (Senior Division), Jagadhri when the learned counsel for the petitioner-plaintiff prayed for adjournment of the case on the ground that witnesses were not present. The prayer for adjournment was vehemently opposed by the respondent-defendants on the ground that sufficient opportunities had already been given to the plaintiffs but he failed to even examine himself as a witness. The learned trial Judge noticed that as many as seven opportunities had already been given to the plaintiffs but he failed to lead and conclude his evidence. He also noticed that the petitioner-plaintiff had been changing his counsels frequently. Plaintiff was even not present in Court for recording of his statement. Under these circumstances the learned trial Judge declined the prayer for adjournment of the case and proceed under Order 17 Rule 3 CPC and closed the evidence of the petitioner-plaintiff. Since there was no evidence- on record in support of the averments made in the plaint the suit was dismissed with costs. Feeling aggrieved against the said order dated 10th October, 1996, the plaintiff filed the civil appeal before the learned Additional District Judge, Jagadhri being Civil Appeal No. 41/CA of 1996 which was instituted on 18th November, 1996, The said appeal came up for hearing before Shri Shekhar Dhawan, Additional District Judge, Jagadhri who upheld the order of the trial Court and held that the plaintiff had been granted sufficient opportunity to lead his evidence and as such the learned trial Judge rightly declined adjournment and closed the evidence of the plaintiff by the impugned order. The learned Additional District Judge, however, even went on to examine the maintainability of the suit for declaration and recorded a finding that the suit was not maintainable. In the result the appeal was dismissed with costs vide judgment dated 9th February, 1998. It is against these orders of the learned trial Court and the appellate Court of the Additional District Judge, Jagadhri that the. plaintiff has filed this revision petition.

Upon issuance of a notice of motion to the respondents, the respondents put in appearance through Shri H.N. Mehtani, Advocate who contested the case. I have heard the learned counsel for the revisionist and the learned counsel for the respondent represented by Shri H.N. Mehtani and have carefully perused the impugned orders.

The sole arguments advanced by Shri R.N. Raina, Advocate for the petitioner is that the petitioner deserves to be granted one more opportunity to lead his evidence and the same be allowed to him in the interest of justice so that the plaintiff-petitioner is in a position to prove his case on merits.

Learned counsel for the respondents, on the other hand, opposed the said prayer of the learned counsel for the petitioners and contended that adjournment could not be claimed by the petitioner-plaintiff as a right. He pointed out that the plaintiff did not avail of the sufficient opportunities which had been granted to him for prosecuting his case and he did not even examine himself in support of his case. He further contended that the interest of justice is to be seen qua the defendants also. Elaborating his arguments, Shri Mehtani, submitted that what is to be considered in the case was whether the petitioner-plaintiff had shown good and sufficient grounds for the adjournment sought by him and in case there are no good and sufficient grounds for seeking adjournment then the learned trial Court was justified in closing the evidence of the plaintiff and in dismissing the suit for want of evidence. Shri Mehtani contended that likewise the learned Additional District Judge was also right in refusing to interfere in the impugned order passed by the learned trial Court. In support of his contention that the plaintiff could not claim adjournment as of a right and the Courts below were justified in refusing to grant the adjournment, learned counsel for the petitioner placed reliance on the following judgments of this Court. In Lilu v. Om Parkash (1991)100 P.L.R. 289 a learned Single Judge of this Court held that merely by changing a counsel the party does not become entitled for adjournment of the case, he also held that despite adjournments previously obtained by the plaintiff-petitioner he failed to lead his evidence. Resultantly, the order of the trial Court in refusing to grant the adjournment and proceeding under Order 17 Rule 3 CPC by closing the evidence of the plaintiff-petitioner was upheld. In a recent case titled as Rupinder Singh Vs. Charanbir Kaur, a learned Single Judge of this Court upheld the order of the trial Court in refusing to grant adjournment and in closing the evidence of the plaintiff under Order 17 Rule 3 Civil Procedure Code. It was held that an order refusing to grant adjournment and consequently closing evidence under Order 17 Rule 3 CPC could not be held to be suffering from any jurisdictional error and consequently there was no ground to interfere with the said order. The learned Single Judge observed in para 2 as under: -

"The learned counsel for the appellant then half heartedly argued that the order passed by the learned trial Court dated 22nd July, 1995 closing the evidence of the defendants under the provisions of Order 17 Rule 3 is an order which suffers from the error of jurisdiction. This contention is equally misconceived. A number of opportunities were granted to the defendants to lead their evidence. They kept on seeking adjournment and on 13th June, 1995 only one witness was examined and the case was again adjourned at their request. They failed to produce any evidence on that date and the learned trial Court, therefore, closed the evidence of the defendants. This order of 22nd July, 1995 was never assailed in a revision before the Court of competent jurisdiction. I do not see any jurisdictional error in the order of the trial Court dated 22nd July, 1995."

The same learned Single Judge upheld the order of the trial Court refusing to grant adjournment and closing evidence of the party under Order 17 Rule 3 CPC in Goel Flour and Oil Mills Vs. Haryana State Electricity Board, wherein the learned Single Judge held in paras 5 and 6 as under:-

"5. There, is no doubt that plaintiff in the present case has been not only negligent in pursuing his suit but has acted with utter irresponsible attitude. Even then the first appeal was preferred all that has been averred in the grounds of appeal before the first appellate Court in regard to the matter in issue, is contained in para 4 of the appeal which reads as under:

That the said order of closing of evidence is challenged in this appeal and is liable to be set aside and only one opportunity be given to the appellant to lead his evidence at his own responsibility.

As submitted by the learned counsel for the appellant now, at this stage, that on one or two occasions, the presiding officer was on leave and matter was listed for proper orders. Even if it is correct, there is no justification whatsoever for the plaintiff not to even file a list of witnesses and file process fee and diet money as per the order of the Court. The first Appellate Court has discussed this aspect at length and I find no infirmity in those findings.

Procedural law is primarily intended to regulate the progress of the suit, but the provisions in this regard cannot be treated as redundant or ineffective. The actions which are required to be taken by a party under the process of law must be taken in the manner prescribed. The appellant even failed to take initial steps in furtherance to the orders of the Court for recording evidence on its behalf. A party which is negligent and irresponsible to this extent is not entitled to any discretion of the Court. No facts were given before the learned first Appellate court and for that matter even before this Court to show that there was sufficient cause for not complying with the orders of the Court, for all this period. The plaintiff is a firm carrying on a business. Plaintiff No. 2 is a sole proprietor. Surely it cannot be argued that there was no capacity on the part of the plaintiff to meet the requirements of law in the case or he had no body to pursue the said case. A firm cannot be equated to a poor litigant whose poverty or other limitation like allowance or other inevitable events which may prevent him from pursuing his suit in the proper manner. The person who flouts or does not carry out the directions of the Court cannot claim equity and thus discretionary relief from the Court."

In the instant case the impugned orders passed by the learned trial Judge will make it abundantly clear that the plaintiff-petitioner had already obtained seven adjournments for leading his evidence but he failed to do so. The plaintiff-petitioner was not even present on the date when the impugned order was passed and no sufficient grounds had been shown for seeking the adjournment. As such, the change in counsel, which was done frequently in this case as per the observation made in the impugned order by the learned trial Court, was not a sufficient ground to grant the adjournment.

In view of the foregoing discussion the impugned orders cannot be held to be suffering from any jurisdictional error or from any error of law. The revision has no merit and is dismissed with costs.