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2013 DIGILAW 2058 (RAJ)

Jagat Singh Rathore v. Municipal Board Pushkar

2013-11-20

ALOK SHARMA

body2013
JUDGMENT : Alok Sharma, J. This civil first appeal under Section 96 CPC has been filed by the appellant-plaintiff (hereinafter `the plaintiff') against the judgment and decree dated 27.04.2013 passed by Additional District Judge No.1 Ajmer dismissing the plaintiff's suit for damages. 2. At the outset it is necessary to note that the suit filed by the plaintiff has been dismissed by the trial court holding that in support of plaintiff's pleadings no evidence was laid before it. 3. Learned Senior counsel appearing for the plaintiff has submitted that the circumstances in which the evidence could not be laid before the trial court are peculiar, inasmuch as on the matter coming up before the court on 23.03.2013 last opportunity for leading plaintiff's evidence was allowed by the trial court to the plaintiff on cost of Rs. 500/- and it was recorded by the trial court that in the event the plaintiff's evidence was not brought on record on the next date it would stand closed. The case was directed to be listed on 18.04.2013, as it subsequently transpired but the counsel appearing for the plaintiff before the trial court Mr. Lalit Sogani, 80 years old and a reputed counsel, however recorded the next date in the case for further proceeding for plaintiff's evidence as 18.05.2013 instead of 18.04.2013. And in terms of the order dated 23.03.2013 the matter was taken up on 18.04.2013, when neither the plaintiff's counsel was present nor the plaintiff himself on the matter being called out by the court. Consequently, the learned trial court noting that issues in the suit were framed on 14.10.2010 and taking into consideration its earlier order dated 23.03.2013 closed the plaintiff's evidence and defendants were required to bring on record their evidence on 24.04.2013. However, 24.04.2013 and 25.04.2013 being holidays, as per practice of the trial court the matter was taken up on 26.04.2013. Order-sheet of the trial court of 26.04.2013 records the presence of plaintiff's counsel, which has been emphatically denied by the learned Senior Counsel appearing on behalf of plaintiff. The defendants on their part before the trial court on 26.04.2013 taking note of the fact that there was no evidence of the plaintiff to rebut, stated that no defence evidence was to be laid before the trial court. The defendants on their part before the trial court on 26.04.2013 taking note of the fact that there was no evidence of the plaintiff to rebut, stated that no defence evidence was to be laid before the trial court. Thereupon the matter was fixed by the trial court for final arguments on 27.04.2013 and the suit was dismissed by the trial court on merits by its judgment of 27.04.2013 on the obvious ground that the plaintiff had been unable to prove its case. Hence this civil regular first appeal. 4. Learned Senior Counsel for the plaintiff has submitted that albeit the issue of adjournments and prolonged trial are indeed a bane of the judicial process and the courts have constantly emphasised firmness against unwarranted adjournments, yet the facts of the present case are not of deliberate obfuscation of the judicial process by the plaintiff but of a situation occasioned by an accidental and bona fide mistake of the plaintiff's counsel before the trial court in recording the next date of the case in his Advocate's diary, wherein he recorded the date fixed by the trial court as 18.05.2013 instead of 18.04.2013. It has been submitted that the copy of the Advocate's diary, noting the next date of the case in issuing having been recorded as 18.05.2013 instead of 18.04.2013 along with scores of other cases in which the counsel was engaged was produced before the trial court along with an affidavit of the plaintiff's counsel, as advised at the relevant time, along with an application under Order 9, Rule 9 read with Section 151 CPC. The affidavit of Shri Lalit Sogani Advocate clearly stated therein that his presence in the order-sheet dated 26.04.2013 ["vakulai pakshakaran upasthit"] was wrongly recorded and he neither any inkling of the case being taken up on 26.04.2013 nor appeared in the case in issue on that date. Learned Senior Counsel submits that the said application has since been withdrawn on 14.08.2013, as advised, in view of the fact that the judgment and decree passed by the trial court dated 27.04.2013 was on merit and not ex-parte. Learned Senior Counsel submits that the said application has since been withdrawn on 14.08.2013, as advised, in view of the fact that the judgment and decree passed by the trial court dated 27.04.2013 was on merit and not ex-parte. Learned Senior Counsel further submitted that Order 17, Rule 2 CPC provides that where on any date to which the hearing of a suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 CPC or make such other order as it thinks fit. Order 17, Rule 3 further provides that where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the suit, for which time has been allowed, in the absence of the party the court may proceed to decide the suit under Rule 2. It has been submitted that a holistic reading of Order 17, Rule 2 & 3 CPC would indicate that where parties are absent on a given date and in a situation where evidence has not been laid, inter alia by the plaintiff the court is to proceed in accordance with the provisions of Order 9. Referring to Order 9, Rule 8 CPC, learned Senior Counsel has submitted that where the defendant appears and plaintiff does not appear when the suit is called on for hearing the court shall make an order of dismissal of suit. This prescribed procedure was circumvented by the trial court and the plaintiff's suit dismissed on merits after consideration of each of the issues and not in default in spite of the fact that the plaintiff's evidence was not on record of the trial court. 5. Learned counsel for the Municipal Board Pushkar and other defendants have commonly stated in unison that the plaintiff was a chronic adjournment seeker and hampering the progress of the suit laid by him merely to harass the defendants and the learned trial court had provided several opportunities for leading evidence. Last opportunity to the plaintiff was given on 23.03.2013 for producing his evidence on the next date on a cost of Rs. 500/-. Last opportunity to the plaintiff was given on 23.03.2013 for producing his evidence on the next date on a cost of Rs. 500/-. It is submitted that neither the amount of cost was paid nor the order of the trial court dated 23.03.2013 was complied with by the plaintiff by bringing in his requisite evidence in support of his suit. Mr. K.N. Gupta, learned counsel for the Municipal Board has further submitted that the suit is based on purported cause of action relying on a judgment of Hon'ble Single Judge in S.B. Civil Writ Petition 3683/2006, wherein the Municipal Board through its Chairman and the SDO Ajmer at the relevant time were held responsible for wrongful and unauthorised demolition of piainun s restaurant. He submitted that the Municipal Board has filed D.B. Civil Special Appeal No. 274/2009 against the order of the Hon'ble Single Judge and the said special appeal is pending before the Division Bench of this court, albeit the judgment of the learned Single Judge has not been stayed. He submits that in view of pendency of the appeal, the suit laid by the plaintiff is even otherwise misdirected. In such circumstances, the learned counsel has submitted that the very suit being only an instrument or harassment, this first appeal should be dismissed as no useful purpose would be served by remanding the matter to the trial court. It has been submitted that an application under Order 9, Rule 9 read with Section 151 CPC having been filed by the plaintiff before the trial court and pending when this appeal was filed, the appeal was not maintainable and be dismissed. 6. Learned Senior counsel appearing on behalf of the plaintiff has submitted in rejoinder that the said application under Order 9, Rule 9 CPC has already been withdrawn on 14.08.2013 as it was not maintainable, the suit having been dismissed on merits. Heard learned counsel for the parties and perused the material available on record. 7. In my considered opinion in the peculiar facts of the case this first appeal deserves to be allowed. Heard learned counsel for the parties and perused the material available on record. 7. In my considered opinion in the peculiar facts of the case this first appeal deserves to be allowed. The learned senior counsel on behalf of the plaintiff has rightly contended that adjournments as a matter of course are not to be granted by the trial court on the mere asking, have also been frowned by the Hon'ble Apex Court and this court and in fact the Hon'ble Supreme Court in case of Shiv Cotex v. Tirgun Auto Plast (P) Ltd. 2011(4) CCC 581 (S.C.) : 2011(3) ACJ 728 (S.C.) : 2011(9) SCC 678 has held that adjournments should be ordinarily limited to three times. He submits that the fact situation of the present case is peculiar having been caused by an accidental slip of the counsel for the plaintiff before the trial court and the judgment of the Hon'ble Supreme Court will not attract to the facts of the case. Genuineness of the accident appears from the averments un-controverted as they are in present appeal, from the copy of Advocate's diary of plaintiff's Advocate as also his affidavit in this regard filed before the trial court along with application under Order 9, Rule 9 read with Section 151 CPC. 8. In my considered opinion for an accidental mistake of the plaintiff's counsel before the trial court in recording the wrong date of further proceeding as 18.05.2013 instead of 18.04.2013, the plaintiff should not be put to irreparable loss of the suit being dismissed for want of evidence and a situation of an appeal there against being of no avail on merits. Further in absence of the plaintiff and his counsel, and in absence of any evidence by the parties, the trial court ought to have dismissed the suit in default under Order 9, Rule 8 CPC with reference to Order 17, Rule 2 CPC and not on merits. 9. Consequently, the impugned order dated 18.04.2013 of closing of the evidence of the plaintiff is quashed and set aside as also in the subsequent judgment and decree dated 27.04.2013. The appeal is allowed and the matter is remanded to the trial court to be tried afresh after taking on record the plaintiff's evidence and that of the defendants. The trial court shall however allow only one opportunity to the plaintiff to lead his evidence. The appeal is allowed and the matter is remanded to the trial court to be tried afresh after taking on record the plaintiff's evidence and that of the defendants. The trial court shall however allow only one opportunity to the plaintiff to lead his evidence. In the event the cross-examination of plaintiff's witnesses is not completed on the said date the same would be completed on the following day. 10. The parties are directed to appear before the trial court i.e. Additional District Judge No. 1 Ajmer on December 19.2013 as jointly prayed. No fresh notice is to be issued to parties as notice to their counsel before this court shall be treated as notice to parties. 11 The first anneal stands allowed accordingly. Stay application needs no address.