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2017 DIGILAW 2518 (RAJ)

Geeta Devi v. Director, Municipal Board

2017-11-15

DINESH MEHTA

body2017
JUDGMENT Dinesh Mehta, J. - The office has placed this matter on Board pointing out that the notices upon respondents No.1, 2, 4 and 7 have not been served. 2. Mr. Nitin Trivedi, learned counsel appears for the contesting respondents No.3, 5, 6, 8 and 9. 3. At the request of Mr. Arora and keeping in view the nature of the controversy involved in the present case, the service upon other respondents, who are only proforma respondents, is dispensed with. 4. Heard learned counsel for the parties at length. 5. With the consent of the learned counsel for the parties, the matter is being finally decided at this stage itself. The petitioner has preferred the present writ petition laying challenge to the impugned order dated 03.01.2017, whereby petitioner - plaintiff''s evidence has been closed by the Senior Civil Judge, Parbatsar, District Nagaur (hereinafter referred to ''as the Trial Court''.. 6. Shorn of unnecessary details, the facts appertain to the present writ petition are that the petitioner - plaintiff had filed a suit for permanent and mandatory injuction. During the pendency whereof the Trial Court on 06.12.2016 passed a peremptory order asking the plaintiff to lead her evidence on the next date fixed by it, which was 03.01.2017, subject to a cost of Rs. 1,000/-. 7. The operative portion of the said order dated 06.12.2016 is reproduced hereunder :- 8. In the meanwhile, in another case which was being represented by the same counsel Mr. Laxman Gaur, the Presiding Officer made an observation that all the matters represented by the said counsel Mr. Laxman Gaur be transferred to another Presiding Officer with a corresponding request to this effect made to the concerned District Judge. 9. The relevant part of the said order dated 14.12.2016 passed in Civil Suit No. 18 of 2014 Arjun Lal Soni vs. Sarika Devi. (Annex.3. is being reproduced hereunder :- 10. Faced with such situation, when the matter was placed before Trial Court on the date, viz. 03.01.2017, the petitioner''s counsel instead of appearing along with the witnesses, requested the Trial Court to adjourn the hearing, while moving an application for transfer of the case. Petitioner''s said application and request for adjournment has been turned down by the Trial Court very vindictively vide order dated 03.01.2017 with the following observation :- 11. Learned counsel for the petitioner Mr. Petitioner''s said application and request for adjournment has been turned down by the Trial Court very vindictively vide order dated 03.01.2017 with the following observation :- 11. Learned counsel for the petitioner Mr. Rakesh Arora, raising grievance against the Presiding Officer submitted that closing of petitioner''s evidence on 03.01.2017 was not in conformity with the law, which rather goes to show the extent of improper and arbitrary exercise of judicial discretion by the Court subordinate. 12. Mr. Nitin Trivedi, learned counsel for the respondents vehemently submitted that the petitioner has not laid any challenge to the peremptory order dated 06.12.2016, whereby the Trial Court had passed the conditional order that if on 03.01.2017, the plaintiff fails to lead her evidence, her right to lead evidence would be struck off. 13. He submitted that the petitioner has challenged only the order dated 03.01.2017, which is nothing but necessary concomitant of the previous order dated 06.12.2016. On failure of petitioner to lead her evidence on 03.01.2017, the Trial Court had no other option but to close petitioner''s evidence; for which no fault can be alleged with the impugned order. 14. Heard learned counsel for the parties and perused the material available on record, including the order-sheets drawn by the Trial Court. 15. An overall conspectus of the factual matrix reveals that on 06.12.2016, learned Trial Court had passed the peremptory order asking the petitioner - plaintiff to lead her evidence on 03.01.2017. Before the fixed date i.e. 03.01.2017 could come, certain unwarranted altercation arose between the petitioner''s counsel and the Presiding Officer, for which the Presiding Officer made an observation in Civil Suit No.24/2017 that all the cases represented by the said counsel Mr. Laxman Gaur be transferred to any Presiding Officer. 16. Finding herself to be in such strange situation, the plaintiff had to move an application seeking adjournment and also requested to transfer the case on 03.01.2017. When such an application was moved, the Presiding Officer, who had already requested the District Judge to transfer all the cases, ought to have desisted himself from passing any order and should have granted an adjournment or accommodation to the plaintiff. 17. The plaintiff has suffered on account of lack of coherence between the Court and counsel. When such an application was moved, the Presiding Officer, who had already requested the District Judge to transfer all the cases, ought to have desisted himself from passing any order and should have granted an adjournment or accommodation to the plaintiff. 17. The plaintiff has suffered on account of lack of coherence between the Court and counsel. Though non-appearance of a counsel cannot be countenanced, nevertheless in peculiar facts of the case, particularly when the counsel had moved an application for transfer of the case, it was imperative for the Trial Court to have adjourned the hearing and granted reasonable opportunity to make alternative arrangement or for leading her evidence. 18. The arguments of Mr. Nitin Trivedi that the order dated 03.01.2017 is only a consequence of the peremptory order dated 06.12.2016 is untenable in the eye of law. It is true that the order dated 06.12.2016 was a peremptory order and in the event of nonobservance of the mandate of the order dated 06.12.2016, the evidence of the plaintiff was liable to be closed, nevertheless on the said date viz. 03.01.2017, when the plaintiff / her counsel moved an application; the rigor of the order dated 06.12.2016 had subsided; for which the Trial Court ought to have deferred the hearing instead of passing the order impugned, closing plaintiff''s evidence. 19. In extent factual backdrop, this Court is of the considered opinion that the order impugned dated 03.01.2017, closing plaintiff''s evidence is not in conformity with the principles of equity, justice and fair play, for which it is quashed and set aside. 20. During the course of arguments Mr. Rakesh Arora has informed the Court that the matter has been transferred to ACJM, Makrana and the next date is 30.11.2017. 21. Hence, it is deemed expedient and hence ordered that on the next date fixed before ACJM, Makrana in whose Court the matter has been transferred, the plaintiff - petitioner shall keep all the witnesses ready for cross-examination and completion of their evidence. Subject to availability of time, the trial Court shall carry out the crossexamination of all the witnesses. For the inconvenience and the litigation to which the defendant has been dragged upto this Court, the plaintiff shall pay an additional cost of Rs. 3,000/- over and above the cost of Rs. 3,000/- already imposed by the Trial Court (Senior Civil Judge, Parbatsar.. 22. For the inconvenience and the litigation to which the defendant has been dragged upto this Court, the plaintiff shall pay an additional cost of Rs. 3,000/- over and above the cost of Rs. 3,000/- already imposed by the Trial Court (Senior Civil Judge, Parbatsar.. 22. It is made clear that the payment of cost of Rs. 6,000/- as ordered and detailed above shall be a precursor to the right of petitioner to lead her evidence. On failure of the petitioner to pay the cost aforesaid or not presenting herself / witness, her right of leading evidence shall not be revived. 23. The writ petition is allowed as indicated above.