Vidya Wati and Others vs Kashmiri Lal Jiwan Lal

R.L. Anand, J.—Unsuccessful plaintiffs Vidya Wati and others have filed the present R.S.A. and it has been directed against the judgment and decree dated 4.12.1979 passed by the Court of Additional District Judge, Patiala, who dismissed the appeal of the plaintiff-appellants by affirming the judgment and decree dated 9.11.1979 by the Sub Judge, IInd Class, Patiala.

The brief facts of the case can be noticed in the following manner:-

The plaintiff-appellants filed a suit for permanent injunction against the defendants Kashmiri Lal Jiwan Lal for restraining them not to make any additions or alterations in the property, which was in possession of them as tenants. It was pleaded by the plaintiffs that the defendant wants to make some additions and alterations in the premises without the permission of the plaintiff-appellants.

Notice of the suit was given to the defendant-firm, which filed the written statement and denied the alterations. However, the relationship of landlord and tenant was admitted. It was also averred by the defendant-firm and the suit was not maintainable and it is false and frivolous to the knowledge of the plaintiffs.

Replication was filed by the plaintiffs who reiterated the allegations of the plaint by denying those made in the written statement.

From the pleadings of the parties, the following issues were framed by the trial Court:-

Whether the defendant wants to make addition, alterations and construction in the premises in dispute? OPA

Whether the plaintiffs are entitled to the injunction prayed for? OPP

Relief."

After the framing of the issues, several opportunities were granted to the plaintiffs. Finally, the evidence of the plaintiff was closed by order as a result of which, the suit was dismissed vide judgment and decree dated 9.11.1979.

Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the first appeal in the court of the Additional District Judge, Patiala, who for the reasons given in paras 5 to 7 of the judgment, which reads as under, dismissed the appeal:-

"5. After the framing of the issues on 14.9.1979, the case was fixed for the appellants'' evidence on 3.5.1979. The appellant did not produce any evidence on that day and was directed to produce the evidence on 2.8.1979. Only Ranjit Singh witness had been served for that day, but was not present. No other witness was present nor produced on that date and the counsel for the appellant under took to produce all the evidence on his own responsibility on the next date of hearing. The next date was 24.8.1979. Even on that date, no witness was produced. The counsel for the appellants sought adjournment which was allowed again at his responsibility to adduce evidence on 18.10.1979. On 18.10.1979, there was no evidence of the plaintiffs-appellants present and the counsel Mr. D.R. Garg again prayed for adjournment to produce the evidence on his own responsibility. The case was then adjourned to 9.11.1979 with the direction that no further opportunity will be given for producing the evidence of the appellant for that date. On 9.11.1979, no witness was produced by the appellant. A telegram had been sent by Vidya Wati one of the appellants in which she has prayed for the adjournment of the case as her daughter-in-law was undergoing operation.

The learned counsel for the appellant has vehemently argued that atleast the appellant should have been examined and opportunity should have been granted to her to appear as her own witness, he has cited 1977(2) Rent Law Reporter 678.

That even otherwise there is no merit in the case of the appellants. It is alleged in para 4 of the plaint that the defendant-respondent wants to make additions, alteration and construction in the disputed premises. This has been denied by the respondent in his written statement."

No body has given the appearance on behalf of the appellants. I have heard Mr. Arun Palli, counsel for the respondent and with his assistance gone through the record of this case as well as the grounds of appeal.

In this case the issues were framed by the trial Court on 14.2.1979 and the case was fixed for the evidence of the plaintiffs for 3.5.1979. On that day, the plaintiffs did not produce any evidence nor they stepped into the witness box in order to support their case as a result of which the case was adjourned to 2.8.1979. On that day, one Ranjit Singh was served. Neither Ranjit Singh nor any other witness was present or produced by the plaintiffs as a result of which the case had to be adjourned and the counsel for the plaintiffs gave an undertaking before the trial Court that he will produce the evidence on the next date of hearing and the case was adjourned to 24.9.1979. However, on that day, the plaintiff did not step into the witness box in order to adduce any evidence and they were, again, accommodated, and the case was adjourned to 18.10.1979. Even on that day, no evidence of the plaintiffs was present. Again, adjournment was sought on behalf of the plaintiffs. The case was adjourned to 9.11.1979 at the instance of the plaintiffs with a clear understanding that no further opportunity will be granted to the plaintiff. Even on 9.11.1979, no witness was produced by the plaintiffs. Rather, Smt. Vidya Wati sent, a telegram to the Court for the adjournment of the case as her daughter-in-law was undergoing operation. Left with, no other option, the learned trial court closed the evidence and dismissed the suit,

The above discussion would show that as many as five opportunities were granted to the plaintiffs to prove the case but in spite of that nothing has been done. Even if it is assumed for the sake of arguments that one of the plaintiffs Vidya Wati submitted a telegram to the Court that she could not appear on 9.1.1979, still there were three more plaintiffs who can come in the witness box and make out a case in accordance with the plaint. There is no indication at all that any of the plaintiffs was present or they had brought any witnesses on 9.11.1979. Order 17 Rule 3 lays down that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or, if the parties are, or any of them is, absent, proceed under rule 2. The judgment of the trial Court shows that while declining the last opportunity to the plaintiff, it dismissed the suit vide judgment and decree dated 9.11.1979 and also drafted a decree. Correct approach on the part of the courts below was to proceed under Order 9. Since the plaintiffs were negligent and they did not take any steps for the advancement of the proceedings and the defendant was present on the date i.e. 9.11.1979, the trial Court ought to have dismissed the suit of the plaintiffs under Order 9 Rule 8, C.P.C.

Be that as it may, the present appeal is hereby disposed of with the observations that the suit of the plaintiff-appellants shall be deemed to have been dismissed under Order 9, Rule 8, C.P.C.