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2006 DIGILAW 1387 (PNJ)

Khem Singh v. Vinod Kumar

2006-03-30

VINEY MITTAL

body2006
Judgment Viney Mittal and j. JJ. 1. Defendant is the appellant before this court. Plaintiff,vinod Kumar, filed a suit for recovery of Rs.16,500/-against the defendant. It was claimed that the aforesaid amount had been borrowed by defendant on May 17,1998 on the basis of a pronote and receipt. The plaintiff claimed that the aforesaid amount had not been repaid and,therefore, the suit in question was filed. 2. During the course of proceedings before the learned trial court, no evidence was led by the plaintiff despite a large number of opportunities granted to him. Consequently, his evidence was ordered to be closed and the suit filed by the plaintiff was dismissed by the trial court for want of any evidence. 3. The plaintiff took up the matter in appeal. Leaned first appellate Court held that the plaintiff had not been granted proper opportunity to led his evidence and,therefore, set aside the judgment and decree of the trial court and remanded the case back to the trial court by directing the trial court to afford one effective opportunity to the plaintiff to produce his evidence. This order passed by the appellate court has been assailed by the defendant-appellant through the present appeal. No one has chosen to appear on behalf of the plaintiff despite service. The record of the case shows that no one had appeared on behalf of the plaintiff-respondent despite the service of summons of the present appeal upon him. Consequently this court is left with no other alternative except to decide the appeal exparte. 4. I have heard Shri Binderjit Singh learned counsel appearing for the appellant-defendant and with his assistance have also gone through the record of the case. 5. Learned counsel for the appellant has argued that a large number of opportunities had been granted by the learned trial court to the plaintiff to lead his entire evidence but in spite of the aforesaid fact the plaintiff did not lead any evidence whatsoever. So much so the plaintiff did not appear as his own witness. In these circumstances, learned counsel maintains that the order passed by the appellate court is not legally sustainable and is rather contrary to the record when the appellate court has observed that proper opportunities had not been granted to the plaintiff. 6. From the perusal of the record, I find that the contention of the learned counsel appears to be correct. 6. From the perusal of the record, I find that the contention of the learned counsel appears to be correct. Various zimnies orders passed by the learned trial court have been reproduced by the appellant in the grounds of appeal. It appears therefrom that the case was fixed for evidence of the plaintiff on january 16,2002. On the aforesaid date, the plaintiff did not produce any evidence. 7. Again the case was adjourned to March 7,2002, when the plaintiff again did not produce any evidence. Still further no evidence was produced by the plaintiff on April 10,2002. Thereafter on 3-4 dates, Presiding Officer was on leave. However, the case was taken up on October 9,2002 when again the plaintiff failed to produce any evidence. Similarly on November 15,2002 and January 2,2003 the plaintiff did not lead any evidence. The case was adjourned as a last opportunity for February 18,2003. On the aforesaid date also, the plaintiff did not lead any evidence. In these circumstances, the trial court chose to close the evidence of the plaintiff on February 18,2003 and by invoking the provisions of Order 17 Rule 3 of the Code of Civil procedure chose to dismiss the suit filed by the plaintiff. Therefore, it is apparent that a minimum of seven opportunities had been granted to the plaintiff to lead his evidence. However, the plaintiff did not lead any evidence whatsoever. Therefore, the appellate court was not justified in observing that the learned trial court had not granted proper opportunities to the plaintiff to lead his evidence. 8. Consequently, the present appeal is allowed. Order dated october 26,2004 passed by the learned District Judge, Bhatinda is set side. The appeal filed by the plaintiff before the appellate court is restored back to its original number. The appellate court shall now re-decide the appeal in accordance with law.