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2013 DIGILAW 635 (HP)

ABDUL GAFFAR v. Inderjeet Kalra

2013-07-03

SANJAY KAROL

body2013
Judgment : Sanjay Karol, J. - 1. Tenant -petitioner has filed the present petition under Article 227 of the Constitution of India, taking exception to the order dated 18.2.2013, passed by the Rent Controller, Court No.7, Shimla, in Case No.9-2 of 11/09, titled as Inder Jeet Kalra versus Abdul Gaffar, which reads as under: "No RW's present. Ld. Counsel for respondent has again prayed for adjournment of the case alleging therein that respondent is unwell and is undergoing treatment in J and K hospital for cancer and as such could not appear. Ld. Counsel for petitioner has opposed the oral request of vice counsel for respondent. Heard. Record perused which shows that present case is being fixed for RW's since 21-07- 2011 and thereafter various opportunities have been granted for RW's and till date neither RW's has been produced nor steps have been taken to summon them. Moreover, on 6-09-2012, 3-10- 2012 and 7-01-2013 adjournment application was filed on behalf of respondent which was allowed by this Court. As per provisions of Order 17 Rule 1 C.P.C. only three adjournments are permissible, however, Ld. Counsel for respondent has availed more than 7 opportunities for RW's and has not produced any witnesses on their behalf till date. And as such request for adjournment for examination of RW's is declined. No RW's present, as such opportunity to lead RW's is closed by the order of Court. Now to come up for arguments on 15-03- 2013." 2. Before this Court, tenant has placed on record medical prescriptions/bills to prima facie show that he is 65 years of age and undergoing medical treatment at various hospitals, including Deen Dayal Upadhaya, Zonal Hospital, Shimla and Department of Radio-Diagnosis & Imaging, Institute of Medical Sciences, Srinagar and it was on account of his ill-health that he could not lead evidence in support of his claim before the Court below. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the Court below rightly passed the impugned order. 3. Noticeably, landlord, respondent herein, filed petition for ejectment in the year 2009. Issues were framed on 17.9.2009. Record reveals that between 30.10.2009 and 21.7.2011, statements of all the witnesses of the landlord were recorded. At this juncture, it be also noticed that during this period, for five months, no Presiding Officer was available. 4. 3. Noticeably, landlord, respondent herein, filed petition for ejectment in the year 2009. Issues were framed on 17.9.2009. Record reveals that between 30.10.2009 and 21.7.2011, statements of all the witnesses of the landlord were recorded. At this juncture, it be also noticed that during this period, for five months, no Presiding Officer was available. 4. Eventually, on 21.7.2011, Court adjourned the matte for 14.9.2011, on which date tenant's witnesses were to be examined. Record reveals that on 14.9.2011, 24.2.2012, 30.4.2012, 13.6.2012, 6.9.2012, 3.10.2012, 2.1.2013 and 18.2.2013, despite opportunities afforded, he did not lead any evidence. By way of indulgence, Court accommodated him and adjourned the matter, giving last opportunity for the said purpose, on 30.4.2012 as also 2012, when cost was also imposed upon him. It stood clarified that witnesses were to be examined on the tenant's own responsibility. In fact, on 6.2012 itself, despite Court's earlier observation to the effect that in the event of default, tenant's evidence would be deemed to be closed, yet three more opportunities were afforded to him. The fact that the tenant is ailing stood considered, which is evident from the order dated 3.10.2012. 6. It cannot be said that the tenant has been diligent in pursuing his matter. On the contrary, endeavour appears to be only to procrastinate the same. In this petition, tenant has averred that due to ailment, he has shifted "himself to Srinagar for better care as he belongs to Jammu and Kashmir". 5. Under these circumstances, it cannot be said that the Court below adopted a narrow or a pedantic approach, while construing and applying the provisions of Code of Civil Procedure. 6. It is true that rules are handmaiden of justice and cannot be used to scuttle the interest of the parties, but at the same time, it is expected of the litigant, not to take the Court for granted and seek unnecessary adjournments. The Court below, in my considered view, has been more than liberal in accommodating the tenant, not once but on several occasions. Impugned order cannot be said to be unreasonable, illegal and perverse, warranting interference by this Court. For all the aforesaid reasons, present petition, devoid of merit, is dismissed. Petition stands disposed of, as also pending application(s), if any. Record of the Court below be sent back immediately. Parties, through their learned counsel, are directed to appear before the Court below on 16.8.2013.