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2012 DIGILAW 329 (PNJ)

Amarjit Singh v. Kultar Singh

2012-02-24

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - CM No.4681-CII of 2012 Allowed as prayed for. CM No.4682-CII of 2012 The application is allowed and zimni orders of the trial Court annexed with the application are taken on record, subject to all just exceptions. Main Case 1. Defendant No.9-Amarjit Singh has filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 08.11.2011 (Annexure P-1) passed by learned Civil Judge (Junior Division), Jalandhar thereby closing evidence of defendants No.8 to 10 by Court order. 2. I have heard counsel for the petitioner and perused the case file. 3. On the last date of hearing, counsel for the petitioner submitted that only three opportunities were granted to the petitioner to produce his evidence. To substantiate the said contention, counsel for the petitioner prayed for adjournment to place on record copies of all zimni orders of the trial Court since the date of closing of evidence of respondent No.1-plaintiff till passing of impugned order. Pursuant thereto, relevant zimni orders of the trial Court have been placed on record. 4. Counsel for the petitioner reiterated that only three opportunities were granted to defendants No.8 to 10 for their evidence. This contention is factually incorrect and completely unsustainable. Perusal of zimni orders of the trial Court reveals that after evidence of plaintiff was closed on 06.11.2007 the case was adjourned to 14.01.2008 for evidence of all the defendants. Perusal of zimni orders of the trial Court further reveals that in all, eleven effective opportunities have been granted to the defendants for their evidence. Counsel for the petitioner counted the number of opportunities given after defendants No.1 to 3 were proceeded ex parte whereas defendants No.4 to 7 were already ex parte. However, earlier opportunities were also for evidence of all the defendants including defendants No.8 to 10. The case was always fixed for evidence of all the defendants. Defendants No.8 to 10 never brought any evidence on any date of hearing. Consequently trial Court was left with no option but to close evidence of defendants No.8 to 10 after granting as many as eleven effective opportunities although according to proviso to Order 17 Rule 1 of the Code of Civil Procedure, only three opportunities are required to be granted to a party for its evidence. Consequently trial Court was left with no option but to close evidence of defendants No.8 to 10 after granting as many as eleven effective opportunities although according to proviso to Order 17 Rule 1 of the Code of Civil Procedure, only three opportunities are required to be granted to a party for its evidence. It is correct that this provision being rule of procedure is required to be followed with some flexibility and not with extreme rigidity. However, at the same time, this salutary provision, which has been introduced to curtail the widely criticized delay in disposal of cases, cannot be given a complete go-by by granting indefinite number of adjournments. There has to be some limit somewhere. Granting of eleven effective opportunities to the defendants for their evidence in stead of three opportunities stipulated by law is more than sufficient and, therefore, no further indulgence is required at the hands of this Court. Impugned order of the trial Court cannot be said to be perverse or illegal or suffering from any jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of Constitution of India. 5. Counsel for the petitioner also contended that petitioner had deposited expenses of some witnesses in the Court on 16.09.2008 for being summoned through the Court. This contention also does not help the petitioner because on 04.09.2008 it was fifth opportunity for evidence of the defendants and already last opportunity had been granted for the said date on the preceding date of hearing. Till then, no witness was summoned through Court. Thereafter it was responsibility of defendants themselves to lead their evidence at own responsibility. Even after 04.09.2008 six more opportunities were granted to the defendants for their evidence. The deposit of expenses of witnesses on 16.09.2008 also negatives the contention of counsel for the petitioner that prior to defendants No.1 to 3 being proceeded ex parte, only defendants No.1 to 3 were leading their evidence. If defendants No.8 to 10 had deposited expenses of witnesses on 16.09.2008 i.e. long before defendants No.1 to 3 were proceeded ex parte on 04.10.2011, it does not lie in the mouth of the petitioner-defendant No.9 to contend that earlier, only defendants No. 1 to 3 were leading the evidence. 6. If defendants No.8 to 10 had deposited expenses of witnesses on 16.09.2008 i.e. long before defendants No.1 to 3 were proceeded ex parte on 04.10.2011, it does not lie in the mouth of the petitioner-defendant No.9 to contend that earlier, only defendants No. 1 to 3 were leading the evidence. 6. For the reasons aforesaid, I find no merit in the instant revision petition, which is accordingly dismissed in limine. ------------------