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2017 DIGILAW 610 (PNJ)

Mohinder Singh v. Mohinder Kaur

2017-03-01

DAYA CHAUDHARY

body2017
JUDGMENT : Daya Chaudhary, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 9.2.2017 (Annexure P-2) passed by learned Civil Judge (Junior Division), Jagadhri, Yamuna Nagar, whereby, evidence of the petitioner was closed by the order of the Court. 2. Briefly, the facts of the case as made out in the present petition are that respondent No.1 filed a civil suit against the petitioner and proforma respondents No.5 to 11 for declaration as joint owner of the land in dispute and also for consequential relief of joint possession and permanent injunction restraining the defendants from alienating the suit property. Written statement to the suit was filed. Plaintiff led his evidence and thereafter petitioner and proforma respondents also led their evidence and finally evidence of the petitioner and proforma respondents was closed by order of the Court vide order dated 9.2.2017, which is subject matter of challenge in the present revision petition. 3. Learned counsel for the petitioner submits that evidence of the petitioner has been closed by the order of the Court only on the ground that several effective opportunities were given but still evidence was not concluded. Learned counsel further submits that on 25.1.2017, the statement of expert witness could not be recorded because of suspension of work. On 9.2.2017, he could not appear before the trial Court as on that day he was busy in District Court at Chandigarh relating to case titled as State of U.T., Chandigarh v. Harjit Kaur. Learned counsel also submits that no injustice is going to be caused to the respondents in case one effective opportunity is granted to the petitioner to conclude his evidence. Learned counsel also undertakes to conclude the evidence of the petitioner within one effective opportunity. 4. Heard the arguments advanced by learned counsel for the petitioner and have also gone through the impugned order and other documents available on the file. 5. Filing of suit by respondent No.1 and closing of evidence of the petitioner by the order of the Court are not disputed. The impugned order has been challenged only on the ground that there were certain circumstances due to which the petitioner could not conclude his evidence and only one expert witness remains to be examined. 5. Filing of suit by respondent No.1 and closing of evidence of the petitioner by the order of the Court are not disputed. The impugned order has been challenged only on the ground that there were certain circumstances due to which the petitioner could not conclude his evidence and only one expert witness remains to be examined. It is also the argument that only one effective opportunity is required for concluding whole of the evidence of the petitioner. 6. After hearing the arguments advanced by learned counsel and on perusal of zimni orders available on the file, I am of the considered view that without calling the other party as it will not only prolong the case but will unnecessary burden the other party with expenses, the petitioner deserves to be given one effective opportunity to conclude his entire evidence. 7. It is a settled preposition of law that the scope of exercise of judicial discretion is to achieve the ends of justice, in furtherance to the provisions of Code of Civil Procedure. A limited prayer has been made by the learned counsel for the petitioners, while challenging the impugned order dated 9.2.2017, that the petitioner be granted one effective opportunity to lead his evidence. Undoubtedly, speedy trial is fundamental right of the litigants and no ground is made out to linger on the case for evidence of defendants or plaintiffs. The learned trial Court should have been granted one more opportunity to lead evidence before passing of order of closing of evidence. 8. In case Joginder Singh and others v. Smt. Manjit Kaur, 2000 (2) RCR (Civil) 382, this Court has observed as under:- "3. Should such discretion by the Court can ever be termed as "uncontrolled and un-guided exercise of judicial discretion by the Court? "I have no hesitation in answering the above question in the negative. Certainly, it is not possible for the Court to provide the panacea to all problems arising at different stages of the suit. The Code of Civil Procedure is a comprehensive code and the different stages of a suit are controlled and regulated by various checks and limitations provided in the Code. The pious wish of the legislation for expeditious disposal of the suit runs like a golden thread in the various provisions of the Code. The Code of Civil Procedure is a comprehensive code and the different stages of a suit are controlled and regulated by various checks and limitations provided in the Code. The pious wish of the legislation for expeditious disposal of the suit runs like a golden thread in the various provisions of the Code. The inherent powers vested in the Court under section 151 of the C.P.C. are of very wide magnitude, but are certainly controlled by self restraints and restrict exercise of such powers depending on merit of each case. The Court is under an implied obligation to balance the equities between the parties to a suit to achieve the ends of justice, which is the basic paramount object of the Code. The equities would demand that power under the provisions of the Code or the inherent powers should be exercised by the Court to correct imbalances or inequities resulting from unnecessary adjournments, between the parties. As a result of fault of one party to the suit, the other is certainly put to inconvenience or unnecessary harassment. Delay in conclusion, of "proceedings again is a factor of vital importance, as such, uncontrolled opportunity to a party to conclude its evidence in any number of opportunities would certainly prejudice the interest of the other party to the suit, who is exposed to prolong litigation and expense. Thus, there has to be a stage when the Court must decline to grant further opportunity to the defaulting party to conclude its evidence." 9. Similar view has been taken by this Court in Kaila Devi and Ors. v. State of Haryana in C.M. No. 2726-CI of 1993 in RFA No. 459 of 1988, decided on 17.12.1998, which is as under:- "Inherent powers cannot be used as an instrument to intrude the powers of the Court in regard to a procedure or a remedy, if specifically provided in other provisions of the Code. No code or law could be codified so as to provide for each and every situation, at every stage of the proceedings arising from the vacuum left in the enactment. Such situations are to be supplied by the Court by recourse to inherent powers to create a bridge over such situation for meeting the ends of justice or prevent abuse of process of law. Such situations are to be supplied by the Court by recourse to inherent powers to create a bridge over such situation for meeting the ends of justice or prevent abuse of process of law. To do justice is the primary duty of the Court but duty imposed should be discharged in consonance with the provisions of the Code and within four corners of well enunciated principle, inherent powers being adjunct to the specifically provided powers of the Code as codified in the code. Thus they could not be used for disturbing the procedure provided under the Code because its ramification could prove retrogative to the administration of justice by Civil Court. Entertainment of such application would have the effect of infringing the concept of finality non-doctrine of civil jurisprudence." 10. As per provisions of Orders 16 and 18 of CPC, the intention of Legislature is to fairly conclude the evidence of the parties without unreasonably compromising the expeditious disposal of the suit. The Court may grant further time to the party to commence the evidence. In case of default, the Legislature has given specific powers to the Court under Order 17, Rule 3 of the Code for disposal of the suit or to proceed with the suit as the Court may deem fit and proper. These powers vested in the Court cannot be rendered ineffective or meaningless by granting indefinite adjournments for leading evidence by a party. Such approach is bound to decimate the very purpose of the Code i.e. to achieve the ends of justice and deliver expeditious decision in the cases. Accordingly, such provisions can neither be rendered ineffective nor taken to nadir so as to render provisions of Code as trivial. 11. The procedural law is enacted with the object of doing substantial justice between the parties. Its purpose is to determine the dispute between the parties and provide finality to such determination. The intention is also to prevent multiplicity or frivolous litigation to achieve the object of the golden thread underlying the entire procedure prescribed under the Code. However, it is for the Court to determine, while exercising its discretion uniformly, by creating balance between the parties but such discretion is to be controlled by settled proposition of law keeping in view the facts and circumstances of each case. 12. However, it is for the Court to determine, while exercising its discretion uniformly, by creating balance between the parties but such discretion is to be controlled by settled proposition of law keeping in view the facts and circumstances of each case. 12. Similar observation has been made by Hon'ble the Apex Court in case State of Punjab and another v. Shamlal Murari and another, 1976 AIR(SC) 1177. 13. It has also been held by Hon'ble the Apex Court that rules of procedure are hand mades of justice and the Courts should not deny the justice to the deserving litigant as it would lead to the miscarriage of justice. The procedural law is not to be tyrant but a servant, not an obstruction but an aid to the justice delivery mechanism and, therefore, a liberal approach is required to be taken while dealing with such matters. 14. For the reasons recorded above, the present petition is allowed and impugned order dated 9.2.2017 (Annexure P-2) is set aside. The trial Court is directed to grant one effective opportunity to the petitioner to produce his entire evidence. It shall be the responsibility of the petitioner to produce his evidence on the date fixed by the trial Court. However, the petitioner is burdened with costs of Rs. 10000/- to be paid to the opposite party.