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2013 DIGILAW 1168 (PNJ)

Brij Mohan v. Parveen Kaur

2013-08-30

Rajesh Bindal

body2013
JUDGMENT Mr. Rajesh Bindal J.:- Challenge in the present petition filed by the tenant is to the order dated 15.7.2013, vide which his evidence was closed by order of the court and also order dated 13.8.2013, vide which the application filed by the petitioner for re-calling thereof was dismissed. 2. Briefly, the pleaded facts are that the petitioner had taken ground floor of SCF No. 31, Phase 3B2, Mohali on rent in the year 1985 from Mohinder Singh Deol at a monthly rent of Rs. 2,700/- with annual increase of 10%. Mohinder Singh Deol expired in September, 2006. The eviction petition was filed by the respondents on 4.3.2011, inter-alia, on the ground of personal necessity. After service of the petitioner-tenant, he filed reply to the petition. Thereafter, issues were framed on 17.8.2011 and the case was fixed for evidence of the respondents-landlords, who closed their evidence on 1.8.2012 and thereafter the case was fixed for evidence of the petitioner-tenant. Despite availing number of opportunities, when the petitioner failed to conclude his evidence, the same was closed by the court on 15.7.2013. An application for re-calling of that order was filed by the petitioner on 22.7.2013. During the pendency hereof, a petition was filed in this court vide diary no. 1040779 on 5.8.2013 challenging the same very order dated 15.7.2013. However, the same was never re-filed. The application filed by the petitioner for re-calling of the order dated 15.7.2013 was dismissed by the Rent Controller on 13.8.20132. The present petition has been filed thereafter impugning the orders dated 15.7.2013 and 13.8.2013. 3. Learned counsel for the petitioner submitted that the petitioner was not at fault. He had deposited the Diet Money and got the summons issued for the witnesses to be examined. As they had not been served, the evidence of the petitioner could not have been closed by order of the court. In case one opportunity is granted, the petitioner will conclude his entire evidence at his own risk and responsibility. He further submitted that the application for re-calling of the order dated 15.7.2013 filed by the petitioner has been dismissed by the Rent Controller as not maintainable, which is contrary to the law laid down by this court in Civil Revision No. 5639 of 2012- Santosh Kumar Berry v. Nirmala Devi and others, decided on 25.9.2012 and Sanjay Kumar v. Vinod, 2013(3) CCC 280 (P&H). The aforesaid judgments were even circulated to the Judicial Officers. 4. On the other hand, learned counsel for the respondents submitted that 11 effective opportunities were granted to the petitioner for leading his evidence. He did not avail of the same. The zimni orders passed by the Rent Controller on various dates of hearing, as reproduced in the petition, are not correct. The petitioner has, in fact, tried to mislead the court by producing wrong orders. The petitioner, in fact, had been granted last opportunity and also directed to take dasti summons to procure the presence of witnesses, but he failed to avail of the opportunity. While referring to a judgment of Hon’ble the Supreme Court in M/s Shiv Cotex v. Tirgun Auto Plast P. Ltd. and others, 2011(4) RCR (Civil) 807, it was submitted that grant of more than three opportunities for leading evidence has been deprecated by Hon’ble the Supreme Court observing that adjournments have grown like cancer corroding the entire body of justice delivery system. 5. Learned counsel for the respondents further submitted that after dismissal of the application filed by the petitioner for re-calling of the order dated 15.7.2013, when the case was taken up by the Rent Controller on 17.8.2013, statement was made by learned counsel for the petitioner herein before the Rent Controller that a revision has been filed in this court on 156.8.2013. The case was adjourned to enable the petitioner to produce copy of the order passed by this court and in the alternative for rebuttal and arguments. The fact remains that the present petition in this court was filed on 27.8.2013. The above fact shows that the petitioner had misled the Rent Controller just for the sake of getting adjournment. Such a litigant does not deserve to be heard on merits. 6. Heard learned counsel for the parties and perused the paper book. 7. The fact, which is not in dispute is that the respondents filed petition seeking eviction of the petitioner from the shop in dispute on 4.3.2011. Service of the petitioner was effected. After filing of reply, the issues were framed on 17.8.2011. Thereafter, the case was listed for evidence of the respondents-landlords. 7. The fact, which is not in dispute is that the respondents filed petition seeking eviction of the petitioner from the shop in dispute on 4.3.2011. Service of the petitioner was effected. After filing of reply, the issues were framed on 17.8.2011. Thereafter, the case was listed for evidence of the respondents-landlords. The respondents closed their evidence on 1.8.2012 and thereafter the case was fixed for evidence of the petitioner on 3.9.2012 and was adjourned for 12 dates of hearing till 15.7.2013, when the evidence of the petitioner was closed by order of the court. 8. As one of the issues raised by learned counsel for the respondents is that the zimni orders, as reproduced by the petitioner in the petition are not correct, it would be appropriate to reproduce the same in comparison with the orders, as is evident from the photo copies produced in court: ---------------------------------------------------------------------------------------------------------------------------------------- Orders reproduced in the petition Orders in the photo copies ---------------------------------------------------------------------------------------------------------------------------------------- 1.8.2012 1.8.2012 Case fixed for RW for 3.9.2012 One PW is present and cross-examined. Counsel for the petitioners closed the evidence of the petitioners after tendering document Ex. PA. Now to come up on 3.9.2012 for evidence of respondent. PF/DM, list of witnesses, if any, be filed within a week from today. 3.9.2012 3.9.2012 No evidence of respondent is present. No evidence of respondent is present. Date is requested. Now to come up for Date is requested. Now to come up on 8.10.2012 for 8.10.2012. evidence of respondent. PF/DM, list of witnesses, if any, be filed within a week from today. 8.10.2012 No RW present. Nor served for today. No RW is present nor served for today. RWs be Adjourned for 22.11.2012. summoned on 22.11.2012. 22.11.2012 22.11.2012 No RW is present. Date is requested. No RW is present. Date is requested. The case is Case is adjourned for 7.1.2013. adjourned to 7.1.2013 for evidence of the respondent. 7.1.2013 7.1.2003 No RW present. Adjournment for respondent No RW is present. Learned counsel for the evidence made by the counsel for the respondent made by request for adjournment which respondent which is allowed in the interest is allowed. In the interest of justice last opportunity of justice. Last opportunity is granted to is granted to respondent to conclude its entire respondent to conclude his entire evidence. evidence at own responsibility for 11.2.2013. Now to come up for 11.2.2013. In the interest of justice last opportunity of justice. Last opportunity is granted to is granted to respondent to conclude its entire respondent to conclude his entire evidence. evidence at own responsibility for 11.2.2013. Now to come up for 11.2.2013. Respondent is directed to take the dasti process to procure the presence of the witness for date fixed. 11.2.2013 11.2.2013 No RW present. Date requested by the No RW is present. Learned counsel for the respon- counsel that inadvertently respondent dent request for adjournment as invadevertently could not take dasti process ordered earlier. respondent could not take the dasti process as Heard in the interest of justice. Last ordered earlier. In the interest of justice, last oppor- opportunity granted to take dasti process tunity is granted to take the Dasti process at own on responsibility for 7.3.2013. responsibility for 7.3.2013. 7.3.2013 7.3.2013 RW-1 Brij Mohan is present and examined RW1 Brij Mohan is present and examined in chief. in chief. Cross deferred on the request of HIs cross-examination is deferred at the request of counsel for petitioner as the copy of affidavit counsel for the petitioner as copy of affidavit has has been supplied today. Now to come up been supplied today. Now to come up on 22.3.2013 for 22.3.2013 for cross of RW. for cross-examination of RW1 at own responsibility. 22.3.2013 22.3.2013 RW-1 Brij Mohan present & examined. One RW Brij Mohan is present and examined. No No other RW is present. Request for other RW is present. Request for adjournment. On adjournment on request case is adjourned request case is adjourned to 16.4.2013 for remaini- to 16.4.2013 for remaining evidence of ng evidence of the respondent at own responsibility. respondent at his own responsibilities. Dasti summons be also taken. Dasti summon be also taken. 16.4.2013 16.4.2013 No RW present. Request for adjournment No RW is present. Request for adjournment made on behalf of respondent. Ld. counsel for on behalf of respondent. Learned counsel for the respondent request for adjournment as respondent request for adjournment as he could not he could not take the dasti process to take the Dasti process to procure the presence of procure the presence of the witnesses as the interest of the justice, last opportunity is granted order earlier. Heard in the interest of to the respondent to conclude its evidence at own justice is granted to conclude its evidence responsibility for 3.5.2013. Heard in the interest of to the respondent to conclude its evidence at own justice is granted to conclude its evidence responsibility for 3.5.2013. at his own responsibilities for 3.5.2013. No further opportunity shall be granted for the No further opportunity shall be granted for purpose. Dasti summons be also taken. this purpose. Dasti summons be also taken. 3.5.2013 3.5.2013 Summon issued to witnesses Sandeep Summons issued to the witnesses Sandeep Arora Arora & Gurpreet Singh are received back and Gurpreet Singh are received back unserved. The unserved, the summoned to a witness summons issued to witness Tarsem Lal received Tarsem Lal received back duly served but back duly served, but despite service he did not despite service he did not come present, come present so he is ordered through bailable so he is ordered through bailable warrants warrant of arrest for 22.5.2013. Remaining PWs be for arrest for 22.5.2013. Remaining PW be summoned by way of dasti process. summoned by way of dasti process. 22.5.2013 22.5.2013 Bailable warrants issued against the Bailable warrants issued against the witness witness Tarsem Lal received back Tarsem Lal received back unserved. Fresh notice unserved. Fresh notice be issued as per be issued as per previous order be again issued previous order for 4.7.2013. Notice issued for 4.7.2013. Notice issued to witnesses Sandeep to witnesses Sandeep Arora and Gurpreet Arora, Gurpreet Singh received back unserved. Singh received back unserved. Fresh notice Fresh notice to witnesses Sandeep Arora and to both the witnesses be again issued for Gurpreet Singh be again issued for the date fixed. the date fixed. Plaintiff is directed to take Plaintiff is directed to take dasti process to ensure dasti process to enforce the presence of the presence of witnesses. No other opportunity the witnesses. No other opportunity shall shall be granted for this purpose. be granted for this purpose. 4.7.2013 4.7.2013 No RW present on behalf of respondent No RW is present on behalf of respondent despite despite last opportunity. Counsel for the last opportunity. Ld. counsel for respondent request respondent request for adjournment as the for adjournment as the witness sought to be by the witness sought to be by the respondent is respondent are out of station. Perusal of the file out of station. Counsel for the last opportunity. Ld. counsel for respondent request respondent request for adjournment as the for adjournment as the witness sought to be by the witness sought to be by the respondent is respondent are out of station. Perusal of the file out of station. Perusal of the file shows shows that case is pending since long for the that the case is pending since long for evidence of the respondent has availed 10 effective evidence of the respondent and respondent opportunities to conclude his evidence. Last opp- has availed 10 effective opportunities to ortunity to the respondent concluding the evidence conclude the evidence. Last opportunity to for 6.7.2013. Dasti summons be taken at own the respondent for concluding his evidence responsibility. for 6.7.2013. Dasti summons be taken at his own responsibility. 6.7.2013 6.7.2013 Evidence of respondent subject to last Today the case was fixed for evidence of the opportunity. M. L. Saitia stated at bar that respondent.Subject to last opportunity Sh. M. L. his brief has been last. One more opportunity Setia Adv. Stated at bar his brief of present case may be granted. So the case is adjourned for has been lost. One opportunity may be granted to evidence of respondent subject to last him for the reconstruction of the brief so that he can opportunity on 15.7.2013 failing which lead his respondent evidence. In view of request evidence of respondent be deemed to be made by the counsel for the respondent, case is closed by order. is adjourned for evidence of the respondent. Subject to last opportunity on 15.7.2013 failing which evidence of the respondent to deem have been lodged by order. ---------------------------------------------------------------------------------------------------------------------------------------- 9. A perusal of the aforesaid orders shows that there are discrepancies in the orders reproduced by the petitioner in the petition with the orders produced on file. It is further evident that the petitioner had failed to avail of 11 opportunities for leading his evidence. He was even directed to take dasti process to procure the presence of the witnesses and also at his own responsibility, but still the evidence was not concluded. 10. Hon’ble the Supreme Court in M/s Shiv Cotex’s case (supra) has opined that litigant has no right to abuse the procedure provided in the Code of Civil Procedure. He was even directed to take dasti process to procure the presence of the witnesses and also at his own responsibility, but still the evidence was not concluded. 10. Hon’ble the Supreme Court in M/s Shiv Cotex’s case (supra) has opined that litigant has no right to abuse the procedure provided in the Code of Civil Procedure. Though a limit provided in proviso to Order 17 Rule 1 CPC for grant of opportunity for leading evidence is not mandatory and if there are justifiable reasons available, more than three adjournments can be granted, but normally the limit should be adhered to. It was found that adjournments are growing like cancer corroding the body of justice delivery system. The adjournments should not be granted at a drop of hat. Relevant paragraph 16 thereof is extracted below: “16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit – whether plaintiff or defendant – must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don’t, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100 CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed.” 11. Further, the conduct of the petitioner is evident from the fact that on 17.8.2013, when the case was taken up for hearing by the Rent Controller, it was stated by the counsel for the petitioner therein that a revision petition had been filed in this court. On that ground, the case was adjourned to enable the petitioner to produce copy of the order. The present revision petition, in fact, was filed on 27.8.2013 impugning the order dated 15.7.2013. On that ground, the case was adjourned to enable the petitioner to produce copy of the order. The present revision petition, in fact, was filed on 27.8.2013 impugning the order dated 15.7.2013. The stand of learned counsel for the petitioner in this regard was that earlier the petition was filed on 5.8.2013 vide diary No. 104079, however, the same was not re-filed as the petitioner had already filed an application before the Rent Controller for re-calling of the order dated 15.7.2013. The present petition was filed impugning both the orders, namely, one passed on 15.7.2013 and another one dated 13.8.2013 rejecting the prayer for re-calling of the order. The aforesaid facts clearly establish that the petitioner after filing an application for re-calling of the order dated 15.7.2013 before the Rent Controller on 22.7.2013 filed a petition in this court on 5.8.2013 without even mentioning the aforesaid fact. The aforesaid petition was returned with the objection on 5.8.2013 itself, however, the same was never re-filed. The fact that the petitioner had already filed an application for re-calling of the order impugned before this court was not even mentioned therein. The aforesaid application was dismissed by the Rent Controller on 13.8.2013. On 17.8.2013, learned counsel for the petitioner got adjournment from the Rent Controller stating that a petition had been filed in this court, however, the fact remains that after passing of the order by the Rent Controller on 13.8.2013 rejecting his application for re-calling of the order dated 15.7.2013, no revision petition had been filed in this court till that date, as it was filed on 27.8.2013. The statement made before the Rent Controller was incorrect. For the purpose, no reliance can be placed on a petition filed on 5.8.2013, as by that time the application filed by the petitioner for re-calling of the order dated 15.7.2013 was already pending before the Rent Controller and on 17.8.2013 when the statement was made, the circumstances changed and and a fresh order had been passed on 13.8.2013 rejecting that application. 12. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. 13. 12. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. 13. Before parting with the order, this court would like to place on record the fact, as has emerged in the present case, where the petition initially filed in this court was never re-filed after removing objection is not a case in isolation. There are number of different categories of cases, which are filed in the court and when these are returned with objection being incomplete, those are never re-filed. In many cases by producing the receipt of initial filing, the litigants are taking undue advantage thereof by producing the same before the authorities below. Such a process needs to be checked for which appropriate action is required, which may be in the form of some updation in the software already used by this court, wherein at the time of filing of a petition, the addresses of the official respondents and/or the court, to which the case pertains to, is entered in the data and a computer generated intimation is given to the authorities/courts below 40 days’ after the date of return of the case with objection regarding filing of the case, return thereof with objection(s) and non-filing thereof after removing the objection(s), so that unscrupulous litigants are not able to take undue advantage before the authorities below by producing the receipt of filing of cases in this court. ---------0.B.S.0------------