Smt. Daljit Kaur and Others vs Shri Bishan Singh and Another

S.D. Bajaj, J.—Instead of attacking the judgment recorded by the learned trial Court and the learned First Appellate Court on merits, on the basis of Defendant-Appellants'' rival claims of title to the land, in dispute, learned Counsel for the Defendant-Appellants adverted to different orders passed by the learned trial Court from 6-10-1975 to 15-4-1976 to substantiate the allegations obtaining in paragraphs 4 to 6 of the Grounds of Appeal, suggesting denial of a fair and reasonable opportunity to Defendant-Appellants to adduce their evidence; which, according to their learned Counsel, had resulted in complete failure of justice by closure of their evidence in terms of Order XVII, Rule 3, Code of Civil Procedure, on 15-4-1976.

Evidence of Plaintiff-Respondent in Civil Suit No. 93 instituted on 3-4-1970 was closed an 6-10-1975 nearly 51/2 years after the institution of the suit. On 6 10-1975 the case was adjourned to 24-11-1975 for evidence of Defendant-Appellants. No evidence having been summoned for the State, the case was, on 24-11-1975, adjourned to 23-12-1975, for evidence of Defendant-Appellants. Plaintiff-Respondent was awarded Rs. 25/- (Rupees twenty-five only) as costs for failure of Defendant-Appellants to summon their evidence for 24-11-1975. On 23-12-1975 the costs imposed on 24-11-1975 were duly paid. A written request was made by Defendant-Appellants for being allowed to produce D.Ws. The case was adjourned to 29-1-1976 for their production. During this period after 23-12-1975 and before 29-1-1976 Defendant-Appellants summoned five witnesses, namely, Babu Ram, Shrimati Daljit Kaur, Gurchet Singh, Jore Singh and Sardara Singh through the process-serving agency of the Court after depositing Rs. 27/- (Rupees twenty-seven only) as their diet money, vide Civil Nazir''s deposit receipt No. 4703 dated 12-1-1976 and also allegedly putting in the process fee for summoning them. On 29-1-1976 the Presiding Officer was away to Ferozepur and Jullundur and, therefore, the file was put up before him on the following day, viz 30-1 1976. On this date, it was adjourned to 15-3-1976 for Defendants'' evidence. Unmindful of the written request made on 23-12-1975 and the deposit of diet money and process-fee for summoning five witnesses aforesaid on 12-1-1976, learned trial Court observed in its order dated 15-3-1976:

No D.W. nor summoned. The Defendants to bear costs of Rs. 30/- and arrange D.W. on 15-4-1976. Last opportunity. P.F., if any, within 2 days.

The order passed on 15-4 1976 reads:

No D. W. despite last date nor cists paid. Case has been hanging fire for a long time. Plaintiff closed his evidence on 6-10-1975 and thereafter no D.W. has been examined The case of the Defendant is closed. Even none of the Defendants is present. Announced.

It would thus appear that all orders passed after 23-12-1975 were passed by the learned trial Court in sheer ignorance of factual position obtaining in the case with regard to summoning of witnesses by Defendant-Appellants on 12-1-1976. For the adjournment on 29-1-1976 it need only be mentioned that it was occasioned on account of Presiding Officer of the Court himself being out of station and for no fault of Defendant-Appellants. Proceedings before the learned trial Court have thus resulted in miscarriage and failure of justice.

Strangely enough, Defendant-Appellants brought these facts to the notice of the learned Court of First Appeal as well to suggest that the learned trial Court closed their evidence without cogent grounds. The prayer, however, fell on deaf ears and instead of adverting to factual position of record of the learned trial Court, learned Court of First Appeal brushed the argument aside holding that Defendant-Appellants were themselves to blame for it as they had not summoned any witness during the period 6-10-1975 to 15-4-1976. Observations made by the learned Court of First Appeal in this regard are, however, contrary to the factual position obtaining in the case. Nathi ''B'' containing the record of the application mentioned in the Zimni order dated 23-12-1975, process-fee put in by Defendant-Appellants to summon five witnesses in respect of whom diet-money was deposited, vide Civil Nazir''s receipt No 4703 of 12-1-1976, is not forthcoming. Learned Counsel for Defendant-Appellants has, however, placed on record the secondary evidence of the alleged deposit marked ''X'', which contains the number, date on which the diet-money was deposited, the names of all the five witnesses summoned and the amount of diet-money got deposited for every one of them individually. It clearly shows that the allegation of denial of opportunity to adduce defence evidence before the learned trial Court is well-founded and not in the air.

This Court has held times out of number in Faqir Chand Dhobi v. Smt. Mohinder Kaur 1977 (2) Rent L.R. 633, Dr. Harbhajan Singh Sodhi v. Dr. Ranbir Singh 1977 (2) Rent L.R. 684, Om Parkash Wadehra v. Shri Roshan Lal 1984 (1) Rent L.R. 159, and Hakam Singh v. Jodh Singh 1984 (1) Rent L.R. 342, that in the circumstances like the ones obtaining in the present case, order regarding closure of evidence is legally not sustainable. Learned trial Court is to be regarded to have acted illegally and with material irregularity while passing the order regarding closure of evidence of Defendant-Appellants on 15-4-1976. In such a situation, the proper course for the learned trial Court was to have made an enquiry and found out if the process-fee was or was not paid by the learned Counsel as was stated by him at the Bar. If the process-fee was deposited, as was stated by him at the Bar, then it was for the Ahlmad to have issued the noticse to the witnesses and there was no fault of the Defendant-Appellants if the witnesses were not present or notices were not issued. The Courts are required to do justice. The whole file should have been looked into by the learned trial Court. In the circumstances of the case, as stated above, it cannot be said that the Defendant-Appellants were even guilty of delaying the proceedings. In fact the Defendant-Appellants performed their part of the duty while apparently the Ahlmad or the Clerk concerned did not do his part of the duty in issuing the summonses to the witnesses. By closing the evidence of the Defendant-Appellants, the learned trial Court has acted illegally and with material irregularity in exercise of its jurisdiction. Consequently, the impugned order cannot legally be sustained.

For the reasons recorded above, 1 allow the Regular Second Appeal, set aside the order of the learned trial Court dated 15-4-1976 and direct that the Defendant-Appellants would be afforded an opportunity to lead their evidence in accordance with law.

Parties through their learned Counsel have been directed to appear before the learned trial Court on 18-12-1987.