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2008 DIGILAW 1952 (PNJ)

Mohan Lal v. Babu Singh

2008-11-20

RAKESH KUMAR JAIN

body2008
JUDGMENT Rakesh Kumar Jain,J: 1. The plaintiff filed a suit for possession by way of specific performance on the ground that the defendant, who is owner of house measuring 23 square yards bearing property No. B-XV11-2005, Abdullapur Basti, Ludhiana, had agreed to sell ½ share of the said property to the plaintiff for a total consideration of Rs. 2 lacs. by executing an agreement to sell dated 25.1.2002. It is alleged by the plaintiff that the defendant had received Rs.90,000/-towards earnest money. The sale deed was to be executed on or before 25.12.2002 but possession of one room was delivered to the plaintiff on the date of execution of the agreement. It is the case of the plaintiff that he was ready and willing to perform his part of contract but the defendant delayed the execution of the sale deed on one pretext or the other. The plaintiff remained present before the office of the Sub Registrar on 26.12.2002 but the defendant did not turn up. Since the defendant failed to execute the sale deed inspite of notice served by the plaintiff and started threatening to dispossess him illegally, therefore, the present suit was filed for specific performance seeking permanent injunction as well. 2. In the written statement, it was alleged by the defendant that the plaintiff has not come to the Court with clean hands. It was alleged that he took loan of Rs. 49,200/-against which the plaintiff had got executed an agreement dated 15.11.2000 for a sum of Rs.60,000/-including interest for one year. It was further alleged that the plaintiff received a blank cheque from the defendant on 15.11.2000 and the plaintiff got the time extended vide agreement dated 25.1.2002. It was further averred that defendant was liable to pay Rs.60,000/-alongwith interest. 3. The plaintiff filed replication denying the averments made in the written statement. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to possession of the suit land as claimed ?OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP 3. Whether defendant executed an agreement to sell dated 25.1.2002 ? OPP 4. Whether suit is maintainable in the present form ? OPP 5. Whether plaintiffs has not come to the Court with clean hands ? OPP 6. Relief: 4. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP 3. Whether defendant executed an agreement to sell dated 25.1.2002 ? OPP 4. Whether suit is maintainable in the present form ? OPP 5. Whether plaintiffs has not come to the Court with clean hands ? OPP 6. Relief: 4. Since the plaintiff availed sufficient opportunity to conclude his evidence but failed to produce the same. Learned counsel for the plaintiff made a statement in the trial Court on 04.5.2006 requesting for one adjournment to conclude his evidence. The adjournment was granted for 18.7.2006. But on that date, no witness of the plaintiff was present and the case was adjourned to 2.8.2006. Again on 2.8.2006, the plaintiff failed to produce even a single witness and as such, his evidence was closed by order of the Court. 5. Faced with this situation, the defendant suffered a statement in the Court that he does not want to lead any evidence. The trial Court vide its judgment and decree dated 02.8.2006 dismissed the suit of the plaintiff on the ground that even the plaintiff has not entered the witness box to support his case, therefore, all the averments made in the pleadings have not been proved. 6. The plaintiff filed an appeal before the learned first Appellate Court and urged that the plaintiff's evidence has been closed by order of the Court on 2.8.2006 without affording due opportunity. It was urged that the plaintiff is an old aged person, not mentally fit and had remained ill for the last more than six months, consequently, he could not put in appearance in the Court to prosecute his case personally. The learned first Appellate Court after considering the arguments raised by the learned counsel for the appellant observed thus:- “As emerges out of the learned trial Court's record the issues in this case were framed on 4.3.2004. The application moved for grant of ad-interim injunction was disposed of on 20.4.2006 on which date the case was adjourned to 22.11.2005 for plaintiff's evidence. Obviously seven months' time was granted to the plaintiff for leading his evidence. On 22.11.2005 his evidence being not present the case was adjourned to 12.1.2006 then to 17.2.2006 then to 10.3.2006 and then to 5.4.2006. On all these dates the evidence of the plaintiff was not present. Obviously seven months' time was granted to the plaintiff for leading his evidence. On 22.11.2005 his evidence being not present the case was adjourned to 12.1.2006 then to 17.2.2006 then to 10.3.2006 and then to 5.4.2006. On all these dates the evidence of the plaintiff was not present. Ultimately on 5.4.2006 under compelling circumstances the learned trial Court granted the last opportunity to the plaintiff to adduce his evidence on 24.5.2006. On that date again the position was the same and the case was adjourned to 18.7.2006 by granting last opportunity. Again on that date the plaintiff's evidence was not present and ultimately the case was adjourned to 2.8.2006 for evidence of the plaintiff subject to payment of costs of Rs.300/-. On that date too, the plaintiff's evidence was not present and in this scenario the learned Court might had been of the view that the plaintiff was altogether disinterested to lead his evidence and was left with to alternative except to close evidence by order and then passed such order. The reference to the above mentioned order sheets reveal that the plaintiff availed more than one year period to lead his evidence, though as per amended provisions of the Civil Procedure Code only three adjournments were to be granted to lead evidence. The above mentioned adjournments leave no room for doubt that the plaintiff was afforded large number of opportunities to lead his evidence, even by crossing the limits of time envisaged by the Civil Procedure Code. Mr.Chhiba has argued that the plaintiff being in old age was mentally unfit and he remained sick, but the record is quite barren to show such evidence. Mr. Chhiba has referred to the observations made in Murti Mata Bhadhar Kali and Another (supra). A glance through the same would reveal that in that case, the case was transferred and the transferee Court closed evidence, though the plaintiff never knew that the case has been transferred and he had appeared along-with witnesses in the Court where the case was earlier pending. It was in these premises that his Lordship was pleased to observe that the justice warrants that full opportunity is given to the plaintiff to lead his evidence and is not made to suffer on technicalities and the order vide which the evidence was closed was set aside. It was in these premises that his Lordship was pleased to observe that the justice warrants that full opportunity is given to the plaintiff to lead his evidence and is not made to suffer on technicalities and the order vide which the evidence was closed was set aside. Obviously the position in the instant case is quite different from the one which existed in Re.Murti Mata Bahadhar Kali and Another (Supra). As revealed by the record the plaintiff never made any attempt to file P.F, D.M and list of witnesses for summoning his evidence. Further more, if he himself was sick he could have filed P.F, D.M. and List of witnesses through his counsel. In my opinion, his conduct does not warrant to grant him any more opportunity to lead his evidence. Sequelly no fault can be found with the findings returned by the learned trial Court on all the issues. Consequently, this being a case of no evidence, the findings returned by the learned trial Court on all the issues call for no interference and are affirmed”. In view of the above discussion, the suit of the plaintiff was also dismissed. 7. Learned counsel for the appellant has practically raised the same argument which was raised before the learned first Appellate Court that no proper opportunity has been afforded to him by the Court below to lead evidence. 8. In view of the above detailed discussion in para No. 11 of the judgment of the learned first Appellate Court which has been reproduced here-in-above, I do not find any merit in the argument raised by the learned counsel for the appellant and this appeal is, thus, dismissed without any order as to costs. Appeal dismissed.