Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1542 (MP)

Uttam Singh v. State of M. P.

2013-12-10

ALOK ARADHE

body2013
JUDGMENT Heard on the question of admission. 2. This appeal is by the plaintiff, who has lost in both the Courts. 3. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction. The claim in the suit was based on the ground that the plaintiff is the owner and is in possession of a plot admeasuring 30 x 40 square feet. It was further pleaded that the plaintiff is in continuous possession of the aforesaid plot since 1984-85 and was also granted lease of the said plot in the year 1992. However, the respondents passed an order of eviction of the plaintiff. In the aforesaid circumstances, the plaintiff filed the suit seeking the relief as aforesaid. 4. The defendants filed the written statement and contested the claim of the plaintiff. It was denied that the plaintiff was granted any lease in respect of the land in question. It was further stated that the plaintiff is an encroacher in respect of the plot in question. 5. The Trial Court vide judgment and decree dated 7-10-2011 dismissed the suit on the ground that the plaintiff has failed to adduce evidence. The aforesaid decree was affirmed in appeal by the Lower Appellate Court. 6. Learned Counsel for the appellant submitted that the appellant was convicted for an offence under Section 302 of the Indian Penal Code and was in jail, therefore, he could not adduce evidence. It is further submitted that in the facts of the case, the appellant is entitled to an opportunity to adduce evidence. 7. I have considered the submissions made by learned Counsel for the appellant and have perused the record. The proviso to Order 17 Rule 1(1) and Order 17 Rule 1(2) have to be read together. So read, Order 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on the number of adjournment to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained the third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained the third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalised on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though the circumstances may be beyond the control of a party, further adjournment cannot be granted because of the restriction of three adjournments as provided in the proviso to Order 17 Rule 1. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (for man made or natural calamity). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. [See : Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 ]. 8. The issues in the suit were framed on 13-12-2010. Thereafter, the case was fixed for recording evidence of the plaintiff on 29-3-2011. The case was thereafter against fixed on 9-5-2011 and 28-6-2011 for recording evidence of the plaintiff. However, the plaintiff did not adduce any evidence. Thereafter, the Trial Court on 6-7-2011 and 11-7-2011 directed the plaintiff to keep his witnesses present. However, the aforesaid opportunity was not availed by the plaintiff and on 26-7-2011, neither the plaintiff nor his witnesses were present. In the circumstances, the Trial Court was left with no option to close the right of the plaintiff to adduce evidence. It is pertinent to mention here that on 28-6-2011, the Trial Court had directed issuance of production warrant on payment of P.F. However, despite several opportunities being granted to the plaintiff, he has failed to adduce evidence. The plaintiff had also an opportunity to make an application for his examination on commission which was not availed by him. The plaintiff has not been able to show in the facts of the case that he could not adduce evidence due to circumstances beyond his control. The plaintiff had also an opportunity to make an application for his examination on commission which was not availed by him. The plaintiff has not been able to show in the facts of the case that he could not adduce evidence due to circumstances beyond his control. Therefore, in the considered opinion of this Court, the right of the plaintiff to adduce evidence has rightly been closed by the Trial Court, which does not give rise to any substantial question of law. 9. The jurisdiction of this Court to interfere with the findings of fact is well-defined by catena of decisions of Supreme Court. This Court in exercise of powers under Section 100 of the Code of Civil Procedure can interfere with the finding of fact only if the same is shown to be perverse or based on no evidence. See : Narayanan Rajendran and another v. Lekshmy Sarojni and others, (2009) 5 SCC 264 , Hafazat Hussain v. Abdul Majeed and others, (2011) 7 SCC 189, Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 , D.R. Rathna Murthy v. Ramappa, (2011) 1 SCC 158 , Vishwanath Agrawal v. Sarla Vishnath Agrawal, (2012) 7 SCC 288 and Vanchala Bai Raghunath Ithape (dead) by L.R. v. Shankar Rao Babu Rao Bhilare (dead) by L.Rs. and others, (2013) 7 SCC 173 . The findings of fact recorded by the Courts below by no stretch of imagination can either be said to be perverse or based on no evidence. 10. For the aforementioned reasons, no substantial question of law arises for consideration in this appeal. The appeal fails and is hereby dismissed.