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2014 DIGILAW 1534 (PNJ)

Ramesh Kumar v. Shanti Devi

2014-11-13

RAKESH KUMAR JAIN

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JUDGMENT Mr. Rakesh Kumar Jain, J.: - This appeal is against the order of the Appellate Court dated 09.11.2011 by which judgment and decree of the trial Court was set aside and the case is remanded back to the trial Court with a direction to hear and dispose of the pending application filed under Order 18 Rule 17A of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”) and thereafter decide the case afresh on merits. 2. Briefly stated, the plaintiff Shanti Devi filed the suit for declaration to the effect that she is exclusive owner in possession of the property in dispute bearing property no.BI 513 (old) and B II 534 (new), situated in Chowk Sabzi Mandi, Chhawni Mohalla, Ludhiana, property no.21-A and its relevant “Phar”, situated in New Sabzi Mandi, G.T. Road, Ludhiana and property no.B I.1276 (old) and B.II-255 (new), situated in Kucha Khuda Bux, Chhawni Mohalla, Ludhiana on the basis of the Will dated 10.06.1970, executed by Lakhmi Chand S/o Nar Singh Dass in her favour and for permanent injunction to restrain defendants no.8 and 9 from using and interfering in any portion of the aforesaid property/shop no.21-A and its relevant “Phar” or in the alternative for separate possession of the properties by partition of 1/8th share. 3. The trial Court dismissed the suit on 15.09.1999. The plaintiff filed the appeal in which, inter alia, it was alleged that the trial Court has failed to decide the application filed by the plaintiff under Order 18 Rule 17A of the CPC. The Appellate Court, while reversing the order of the trial Court, observed that the application filed by the plaintiff under Order 18 Rule 17A of the CPC for additional evidence is on the judicial file at pages marked as 323 to 325. The application was filed by the plaintiff to prove on record the age of scribe Parkash Chhabra by summoning the record of his appointment in the office of Excise and Taxation Officer, Ludhiana and the record relating to license issued by the Market Committee/Municipal Corporation, Ludhiana in favour of Gulshan Kumar who was doing his business under the superintendence and control of the plaintiff. The application was found supported by an affidavit of the plaintiff, attested by the Oath Commissioner on 30.08.1999. The application was found supported by an affidavit of the plaintiff, attested by the Oath Commissioner on 30.08.1999. It was also found that it does not bear the stamp of the Court regarding its filing and also there was no zimni order recorded on 30.08.1999 for filing of the application in the Court. It was observed by the Appellate Court that since the application is now a part of the judicial file, the trial Court is required first to decide the application and then the main case could be decided. 4. Counsel for the appellants has vehemently argued that the application dated 30.08.1999 filed under Order 18 Rule 17A of the CPC, available on the record at pages no.323 to 325 is neither signed by the Presiding Officer nor any zimni order has been recorded while taking the application on record. It is suggested by him that the said application has been added lateron to create a ground for the purpose of remand of the case because even the Court fee stamp of Rs.1.25/- on the first page of the application, i.e. page no.323, is not signed/cancelled by the plaintiff. He has relied upon an order passed by this Court in the case of M/s S.K. Engineering Works and another v. Gurdip Singh and others, CR No.7865 of 2010, decided on 21.03.2012 and also an order passed in the case of Bijilesh Devi v. Anand Prakash, CR No.1674 of 2011, decided on 03.02.2012. 5. On the other hand, learned counsel the respondents has argued that the application filed for additional evidence by the plaintiff should have been decided by the trial Court when the main suit was decided as no application could be allowed to remain alive on the record when the main suit itself is decided. 6. I have heard learned counsel for the parties and perused the record with their able assistance. 7. I have found from the zimni orders that the plaintiff’s evidence was closed in rebuttal on 16.02.1999 in which the following order was passed:- “Plaintiff closed his evidence in rebuttal after tendering the documents Ex.PXI to PX-13 and mark XI and X2. Now to come up on 24.02.1999 for arguments.” 8. Thereafter, the case was continuously adjourned for rebuttal and arguments. Now to come up on 24.02.1999 for arguments.” 8. Thereafter, the case was continuously adjourned for rebuttal and arguments. At this stage, I would definitely observe that the trial Court has been very casual in recording the zimni orders because neither the names of the counsel for the parties were mentioned while recording their presence nor it is clear from the orders that on whose request the case was adjourned time and again. It is needless to mention that I have already issued directions in an earlier case titled as “ICICI Bank Ltd. and another v. M/s Ohm Forex Services Ltd.”, [2011(1) Law Herald (P&H) 122] : CR No.5009 of 2010, decided on 11.11.2010 that the Court should record the exact appearance of the parties and the zimni order should clearly reflect as to what had transpired in the Court on that date because it has been held by the Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak and another, 1982(2) SCC 463 that record of the Court is accepted to be correct until and unless proved to the contrary before the same Court. 9. In the present case, it is an admitted fact that the application under Order 18 Rule 17A of the CPC filed by the plaintiff is dated 30.08.1999 when the case was being adjourned time and again for rebuttal evidence. At this stage, I would also like to highlight that in the present case, the first date for rebuttal and arguments was fixed on 16.02.1999 for 24.02.1999. Thereafter, the case was adjourned to 06.03.1999, 16.03.1999, 26.03.1999, 05.04.1999, 21.04.1999, 28.04.1999, 04.05.1999, 07.05.1999, 18.05.1999, 27.05.1999, 09.06.1999, 16.07.1999, 21.07.1999, 23.07.1999, 27.07.1999, 29.07.1999, 02.08.1999, 06.08.1999, 12.08.1999, 17.08.1999, 19.08.1999, 24.08.1999, 25.08.1999, 26.08.1999 and on 30.08.1999 it was fixed for 31.08.1999 for arguments. It is really amazing that why the learned trial Court adjourned the case for 26 times for the purpose of rebuttal and arguments. It is a general perception that the trial Court used to adjourn the cases many times at the stage of rebuttal and arguments before it finally decides the suit. This practice of the trial Court is not appreciative and a word of advice is being given that the case should not be adjourned unnecessarily at the stage of rebuttal and arguments. 10. This practice of the trial Court is not appreciative and a word of advice is being given that the case should not be adjourned unnecessarily at the stage of rebuttal and arguments. 10. Insofar as the application is filed by the plaintiff under Order 18 Rule 17A of the CPC is concerned, it would be worthwhile to mention that in Bijilesh Devi’s case (supra), this Court had observed that “had a memo of appearance been filed on 27.07.2009, the same would have certainly been reflected in the zimni order passed on that date”. This Court in this case directed the District and Sessions Judge to enquire into the aspect as to how a memo of appearance dated 27.07.2009 is on record before the Court below without there being any reference to it in the zimni order. It is really a matter of great concern that the trial Court does not record the receipt of any application in the zimni orders and allow it to be paginated in the judicial file giving a chance to an unscrupulous litigant to play havoc with the Court record and the judicial system, with an accusing finger towards the Court for not deciding the application which might not be a part of the record when the main suit is decided as in the absence of the application bearing signatures of the Presiding Officer and its reference having been made by way of zimni order, it could easily be sneaked in the Court file in order to take a plea later on that the trial Court or the Appellate Court has committed an error in not taking a decision on the application which might have a strong bearing on the merits of the case. 11. In M/s S.K.Engineering Works and another’s case (supra), this Court had issued the following directions in order to regulate the procedure pertaining to filing and disposal of the application:- (1) Each and every application filed in a case shall be numbered in seriatim in ascending order, which shall be independent in each case. All the applications shall be tagged and kept in a separate file. (2) The zimni order on the date when any application is filed shall briefly mention the purpose for which the application has been filed and by whom. All the applications shall be tagged and kept in a separate file. (2) The zimni order on the date when any application is filed shall briefly mention the purpose for which the application has been filed and by whom. (3) An index shall be put on the file mentioning the number of application serial-wise; the name of the applicant; date of filing; purpose of the application and the date of its disposal. (4) A note be put up on each application when disposed of about the date of its disposal.” 12. Although orders passed in ICICI Bank Ltd. and another’s case (supra) and M/s S.K.Engineering Works and another’s case (supra) was circulated to all the Courts in the State of Punjab, Haryana and U.T. Chandigarh but there is not much effect on the working style of the Courts below which itself is a matter of great concern as indifference on the part of the Courts below in following the directions issued by this Court not only provides a chance to an unscrupulous litigant to tamper with the judicial record but also breads unnecessary litigation. 13. Now reverting back to the facts of the present case, since the application under Order 18 Rule 17A of the CPC is neither signed by the Presiding Officer nor it has any reference in the zimni orders passed by the Court from time to time and especially when the application seems to have been filed when the case was pending for arguments, it deserves to be discarded being not a part of the judicial record except the fact that it is on judicial file. 14. Consequently, the present appeal is allowed and the order passed by the Appellate Court, remanding the case back to the trial Court, after setting aside its judgment and decree, to decide the said application is hereby set aside. 15. Before parting, the Registrar of this Court is directed to ensure the circulation of this order to all the District and Sessions Judges of the Punjab, Haryana and U.T. Chandigarh for compliance of the directions contained in the orders passed in ICICI Bank Ltd. and another’s case (supra) and M/s S.K. Engineering Works and another’s case (supra). ---------0.B.S.0------------ —————————