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2006 DIGILAW 2750 (PNJ)

Murari Lal v. Ashok Aggarwal

2006-07-13

MAHESH GROVER

body2006
JUDGMENT MAHESH GROVER, J. The plaintiff-appellant has filed the instant appeal against the judgments and decrees passed by the Courts below. 2. Briefly stated the facts of the case are that the plaintiffappellant instituted a suit for declaration to the effect that he is the joint owner in possession of the housed fully detailed in the head note of the plaint to the extent of 1/5th share and, therefore, prayed for a permanent injunction to restrain the defendants-respondents from dispossessing him as well as other family members from the suit property and also prayed for an injunction to restrain the respondents from alienating the suit property. 3. The appellant and the respondents are related to each other and have derived their interest from their common ancestor, Om Parkash, who is said to have died on 17.8.1994. 4. The suit was opposed by the respondents and the possession of the appellant was denied. A family arrangement was pleaded according to which it was averred that the appellant had been given 1/3rd share in some other property and that he had no concern with the suit property or the house. It was also pleaded that a registered Will had been executed by Om Parkash-deceased in favour of respondent no.3. 5. During the course of proceedings before the trial Court, the appellant had failed to produce any evidence and it was ordered to be closed under Order 17 Rule 3 of the Code of Civil Procedure (for short, ‘the C.P.C.’). Thereafter, the trial Court proceeded to determine the relevant issues against the appellant and dismissed the suit. 6. The lower Appellate Court affirmed the findings recorded by the trial Court and held that the appellant had been granted a number of opportunities for leading his evidence which had been closed under the provisions of Order 17 Rule 3 of the C.P.C. It did not find any justification to interfere with the order of the trial Court since the appellant had already availed a number of opportunities for leading his evidence. The judgment and decree of the trial Court was upheld. 7. Shri Vishal Gupta, learned counsel for the appellant has contended that the judgments of the Courts below have resulted in complete miscarriage of justice as the evidence of the appellant was closed by the order of the Court and, therefore, his rights have been seriously prejudiced. The judgment and decree of the trial Court was upheld. 7. Shri Vishal Gupta, learned counsel for the appellant has contended that the judgments of the Courts below have resulted in complete miscarriage of justice as the evidence of the appellant was closed by the order of the Court and, therefore, his rights have been seriously prejudiced. He further contended that in fact, the son of the appellant, namely, Abhinav Aggarwal, was hospitalised in C.M.C.Hospital, Ludhiana a number of times as an indoor patient and that he had to be taken for regular check up between 6.8.2000 to 7.8.2001 and it was only on account of pre-occupation due to ailment of his son, that the appellant could not produce the relevant evidence. Shri Gupta urged that in case, the appellant is granted one opportunity, he would complete his entire evidence. 8. Shri L.M.Suri, learned Senior Advocate appearing for the respondents, contended that the appellant had failed to adduce evidence despite a number of opportunities having been granted to him and had also failed to give any satisfactory explanation for the same and, therefore, there was no infirmity in the judgments of the Courts below. I have considered the submissions & contentions of the learned counsel for the parties and have come to the conclusion that the impugned judgments have resulted in miscarriage of justice and the appellant deserves to be allowed at least one opportunity to lead his evidence. The appellant was unable to attend to the court proceedings because he was involved in the treatment of his ailing son. It should always be the endeavour of the Court to do substantial justice to the parties. In this case, the parties are related to each other. No doubt, the appellant had failed to adduce evidence despite number of opportunities being granted to him, yet, it was a laps which could be condoned by compensating the other side in terms of costs. 9. Keeping in view the totality of the circumstances and the larger interest of justice, I allow the appeal and set aside the impugned judgments and decrees. The matter is remanded back to the trial Court with a direction to grant one opportunity to the appellant to produce his entire evidence. The parties are directed to appear before the trial Court on 14.9.2006. Thereafter, the trial Court shall fix a date for evidence of the appellant. The matter is remanded back to the trial Court with a direction to grant one opportunity to the appellant to produce his entire evidence. The parties are directed to appear before the trial Court on 14.9.2006. Thereafter, the trial Court shall fix a date for evidence of the appellant. It will, however, be subject to the appellant’s depositing a sum of Rs.20,000/- with the trial Court on the date of appearance i.e. on 14.9.2006 and it will be only then that the trial Court shall proceed to fix the date for taking his evidence. In case, the appellant fails to deposit the costs, the judgments under challenge in this Regular Second Appeal shall stand revived and the appeal shall be deemed to have been dismissed.