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2000 DIGILAW 210 (PNJ)

Hukam Chand v. Kedar Singh

2000-02-21

SWATANTER KUMAR

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Judgment Swatanter Kumar, J. 1. This revision is directed against the order dated 10.12.1999 passed by the learned Additional Civil Judge (Senior Division) wherein learned Judge ordered that the evidence of the plaintiff be closed. The reason given for passing this order was that the plaintiff availed of six opportunities and had not stepped himself into the witness box. Finding no justification for further grant of adjournment, the learned Judge passed the order. Notice to show cause why the petition to be admitted was issued to the respondent by this Court on 17.1.2000. As per the report of the Registry the respondent has been served. Case has been called out three times since morning but nobody appeals on behalf of the respondent despite service. Resultantly, the respondent is ordered to be proceeded ex-parte in these proceedings and the matter has been accordingly heard. 2. The learned trial Court has noticed that six opportunities were granted and the plaintiff did not examine the witnesses. However, the zimni orders produced on record show that the learned counsel for the plaintiff. Mr. Lalit Chowdhary had met with an accident and could not appear in Court on 11.3.1999 and the case was adjourned to 6.5.1999 for recording of evidence. On that date two PWs were present and examined. The case was adjourned to 8.6.1999 on which date the learned Judge was to go on leave and, therefore, the case was adjourned. The file was taken up and the case was adjourned to 19.8.1999. However, the case was again taken up on 14.8.1999 as the learned Judge was to proceed for training to Delhi. Thereafter, an opportunity was granted to the plaintiff to adduce his evidence but the witnesses were not present and the impugned order was passed. 3. Thus, it is clear from the above facts that the plaintiff in fact was not granted six opportunities to lead evidence. Rather on three dates the Court itself was not available. Be that as it may, the orders of such serious gravity should be preceded by orders of lesser gravity. In other words, the Court should normally impose costs before closing the evidence of a party so that the party itself could take notice of the consequences which may follow as a result of not adducing evidence before the Court. Be that as it may, the orders of such serious gravity should be preceded by orders of lesser gravity. In other words, the Court should normally impose costs before closing the evidence of a party so that the party itself could take notice of the consequences which may follow as a result of not adducing evidence before the Court. Grant of last opportunity with costs is certainly a step towards passing of an order of the present kind. It cannot be treated as a rule but it would normally be appropriate to do so as a procedural law is always intended to meet the ends of justice and not to shut the doors for a party to lead and close its evidence. In this regard, reference may be made to the judgment of this Court in the case of Joginder Singh and Ors. v. Smt. Manjit Kaur, Civil Revision No. 5885 of 1998, decided on 14.1.1999. where the court held as under:- "The inevitable principle that emerges from the aforesaid established principle of law is that the Court must take recourse to the powers vested in the Court under the codified law at the appropriate stage and keeping in view the facts and circumstances of that case. It is true that it will not be possible to formulate a strait-jacket formula but passing of adverse orders against a party in the event of default, at some stage, at least, would be but necessary. In other words, the Court must take recourse to such powers as are essential for achieving the ends of justice. Expeditious disposal of the suit is the very foundation of the amplified procedure prescribed in the code for conclusion of the suit. May be, a reasonable approach in this regard would, in any case, be highly appreciable. Even applying this concept of reasonableness in exercise of judicial powers would be fully satisfied in the present case. The said purpose is fully achieved in the present case. The Court granted opportunities to the plaintiffs to lead evidence, then granted last opportunity and then finally imposed costs for adjourning the case to a date when finally evidence of the plaintiff was closed. The said purpose is fully achieved in the present case. The Court granted opportunities to the plaintiffs to lead evidence, then granted last opportunity and then finally imposed costs for adjourning the case to a date when finally evidence of the plaintiff was closed. Counsel was put at notice and so was the party i.e. the plaintiffs were also cautioned by the Court by imposition of costs and that any further default is bound to result in an adverse order against the plaintiffs. Persistent default on the part of the plaintiff inspite of such cautious and fair approach adopted by the learned trial Court left the learned trial Court with no option but to pass the impugned order. I would willingly predicate the approach adopted by the learned trial Court in this case as then alone it is possible to ameliorate ways and means for expeditious disposal of the suit within the provisions of the Code and prevent prescribed procedure being rendered disfunctional." 4. For the reasons aforesaid, and particularly, when there is no opposition to the present petition, I would accept the petition and set aside the order dated 10.12.1999 and permit the petitioner-plaintiff in the suit to conclude the entire evidence on the date to be fixed by the learned trial Court. The plaintiff shall produce his evidence at his own risk and responsibility and would not be entitled to any further adjournment on any ground except for paucity of time with the Court. This petition is allowed subject to payment of Rs. 500/- as costs, costs being conditional.Dasti on payment.