Suraj Parkash Singh vs Shivraj Singh and Others

L.N. Mittal, J.—Plaintiff Suraj Parkash Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 10.04.2013 (Annexure P-1) passed by the trial court, thereby closing evidence of the plaintiff by court order. I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that the petitioner''s witnesses had been appearing in the Court and their examination-in-chief was recorded, but their cross-examination was deferred on the request of counsel for the defendants/respondents, and therefore, another opportunity should be granted for appearance of the plaintiffs witnesses including plaintiff for their cross-examination. Reference in this regard was made to orders dated 30.10.2011, 02.03.2012 and 27.03.2012 passed by the trial court, as reproduced in the revision petition. It was also argued that on 21.02.2013, the plaintiff and his counsel noted the next date of hearing as 16.05.2013, but the case was taken up on 10.04.2013 and on that day, plaintiff and his counsel were not present in the trial court and in their absence, impugned order (Annexure P-1) was passed.

I have carefully considered the aforesaid contentions, which are completely unsustainable.

Perusal of impugned order reveals that counsel of the plaintiff was present on 10.04.2013 when the impugned order was passed. Consequently, merely on the basis of affidavit of the petitioner that his counsel was not present in the trial court, this plea cannot be accepted. On the other hand, perusal of the zimni orders of the trial court, as reproduced in the revision petition, reveals that on 21.02.2013, the case was adjourned to 16.03.2013. Perusal of order dated 16.03.2013 reveals that counsel of both the parties were present on that day and the case was adjourned to 10.04.2013. Even on 10.04.2013, counsel for both the parties were present. Consequently, the plea that counsel for the plaintiff was not present in the trial court on 16.03.2013 and 10.04.2013 cannot be accepted. There is also no affidavit of counsel representing the plaintiff in the trial court that he was not present in the trial court on 16.03.2013 or 10.04.2013.

Perusal of zimni orders of the trial court reproduced in the revision petition also reveals that on 30.10.2011, the plaintiff appeared as PW-1 and tendered his affidavit of examination-in-chief. His cross-examination was deferred on the request of counsel for defendants to 14.11.2011. However, order dated 14.11.2011 passed by the trial court has not been produced or reproduced. Rather order dated 02.03.2012 has been reproduced. It is not mentioned as to how many dates of hearing were there in between 30.10.2011 and 02.03.2012 and on those dates, whether plaintiffs witnesses were present or not. However, order dated 02.03.2012 reveals that another witness Ravinder Singh (PW-2) was examined on that day and no other witness was present. It would mean that plaintiff was not present even on 02.03.2012 for his cross-examination. Then there is order dated 27.03.2012, which shows that another witness Bhajan Singh (PW-3) was examined in chief and his cross-examination was deferred on request of counsel for the defendants, but even on that day, presence of plaintiff as PW-1 for his cross-examination was not recorded. It means that after appearing as PW-1 on 30.10.2011, the plaintiff did not appear thereafter for his cross-examination on large number of dates of hearing.

The plaintiff has also failed to produce on record as to how many opportunities were granted to him in all for his evidence. It appears that he was granted large number of opportunities for his evidence. As noticed herein before, zimni orders of the trial court since after 30.10.2011 till before 02.03.2012 have not been reproduced or produced. Similarly, zimni orders of the trial court since after 27.03.2012 till before 21.02.2013 have also not been produced or reproduced. Perusal of the orders that have been reproduced reveals that the plaintiff was granted five opportunities besides one opportunity on 10.04.2013, when impugned order was passed and large number of other opportunities also appear to have been granted during the above periods, for which the orders have not been produced.

According to Order 17 Rule 1 of the Code of Civil Procedure, only three opportunities are required to be given to a party for its evidence. It is correct that the said provision is rule of procedure and is directory and not mandatory and may be followed with some flexibility and not with extreme rigidity. However, at the same time, this provision has been introduced to curtail delay in disposal of the cases because such delay is attracting widespread criticism and rightly so. Consequently, the aforesaid provision cannot be given complete go-by by granting large unlimited and infinite number of opportunities to a party for its evidence. In the instant case, it appears that more than 12 opportunities must have been granted to the plaintiff for his evidence keeping in view the short dates of hearing, which were being fixed by the trial court, as per some of the zimni orders reproduced in the revision petition. In view thereof, the plaintiff is not entitled to any further opportunity for his evidence.

It may also be added that even instant revision petition has not been filed promptly, but has been filed after four months of the passing of the impugned order. For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to call for interference by this court in exercise of revisional jurisdiction. The revision petition is completely meritless and is accordingly dismissed in limine.