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2017 DIGILAW 681 (PNJ)

Amanjot Singh v. Harvinder Singh

2017-03-08

DAYA CHAUDHARY

body2017
JUDGMENT Mrs. Daya Chaudhary, J.: - The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 4.1.2017 (Annexure P-1) passed by the Civil Judge (Junior Division), Jalandhar, whereby evidence of the petitioner has been closed by Court order. 2. Briefly, the facts of the case are that plaintiff-respondentHarvinder Singh filed a suit for specific performance of agreement to sell dated 23.7.2005 executed by the defendant-petitioner being attorney of Smt. Sukhvarsha-respondent No.2 regarding plot in dispute. Said suit was contested by the petitioner-defendant by filing written statement. Issues were framed. The plaintiff-respondent closed his evidence in the case on 12.5.2015. The case was thereafter fixed for evidence of the defendantpetitioner. On 4.1.2017, neither the petitioner nor his counsel was present in the Court, whereas, defendant-witness, namely, Smt. Shashi Bala was present. Last opportunity was granted to conclude the evidence on the date fixed but in the absence of the petitioner or his counsel, the statement of witness could not be recorded and his evidence was closed vide impugned order dated 4.1.2017 and the case was adjourned to 11.1.2017 for rebuttal evidence of the plaintiff. On 11.1.2017, the Presiding Officer was on leave and, as such, the case was taken up on 10.1.2017 and was adjourned for 17.1.2017. The petitioner-defendant moved an application for recalling of order dated 4.1.2017 but the same was dismissed. 3. Learned counsel for the petitioner submits that while passing impugned order dated 4.1.2017, it has simply been mentioned that last opportunity was granted to the petitioner-defendant to conclude his evidence but he was not interested in examining DW- Smt. Shashi Bala or any other witness and, therefore, his evidence was closed. No reason whatsoever has been recorded in the order. The defendant-petitioner remained present in the Court on all dates and lapse, if any, was only on the date when impugned order was passed. There was no intention to remain absent when the defendant witness was present. While dismissing the application for recalling of order dated 4.1.2017, the trial Court has observed that his evidence has been closed by order of the Court after affording sufficient opportunities and no further opportunity was justified. At the most, the petitioner-defendant could be proceeded ex parte. There was no intention to remain absent when the defendant witness was present. While dismissing the application for recalling of order dated 4.1.2017, the trial Court has observed that his evidence has been closed by order of the Court after affording sufficient opportunities and no further opportunity was justified. At the most, the petitioner-defendant could be proceeded ex parte. Learned counsel also submits that the petitioner-defendant may be granted one opportunity to examine Shashi Bala, who was present in the Court as the same is necessary for just decision of the case. Learned counsel also submits that the defendant-petitioner summoned Shri Sukhjinder Singh, Hand Writing and Finger Print Expert in support of his case. The petitioner himself also remains to be examined in the case and wants to examine expert witness in support of the case. Learned counsel also submits that no prejudice is going to be caused to the other party and he is ready to compensate the other party for the delay, if any. 4. Heard arguments of learned counsel for the petitioner and have also perused the impugned order as well as other documents on the file. 5. A perusal of impugned order dated 4.1.2017 clearly shows that the evidence of the petitioner has been closed by order of the Court only on the ground that DW was present but the petitioner and his counsel were not present. Even the application moved by the petitioner for recalling of order was dismissed. 6. Without issuing notice to other party as it will not only prolong the case but will unnecessary burden the other party with expenses in engaging a lawyer before this Court, the case is being decided. 7. It is a settled proposition 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 learned counsel for the petitioner, while challenging impugned order dated 4.1.2017, that he be granted one effective opportunity to conclude his evidence so that he can produce all the witnesses on the same date. No doubt, the petitioner has been granted sufficient opportunities but on the date when his evidence was closed only witness was present but she could not be examined in the absence of counsel representing the petitioner. No doubt, the petitioner has been granted sufficient opportunities but on the date when his evidence was closed only witness was present but she could not be examined in the absence of counsel representing the petitioner. Undoubtedly, speedy trial is fundamental right of the litigants and no good ground is made out to linger on the case for evidence of defence and as such the defence evidence was closed by Court order. The learned trial Court ought to have granted one more opportunity to lead evidence and ought not to have passed the order closing the evidence of the plaintiff. 8. In case Joginder Singh & Ors. 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 “unc ontrolled 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 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. 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 de faulting party to conclude its evidence.” 9. Similar view has been taken by this Court in Kaila Devi & 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. 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. 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 preposition 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 vs. Shamlal Murari and another, 1976 AIR (Supreme Court) 1177. 13. No doubt, the petitioner was granted opportunities but he could not adduce his evidence. There is nothing on record to show as to whether the cost was imposed for not producing his evidence from time to time. Court would have cautioned the petitioner that in case the evidence was not produced, the same would be closed. The order closing the evidence of a party has got far reaching consequences. The main object of the Court is to do substantial justice. The procedural wrangles cannot be allowed to stay in the way of grant of substantial justice. Court would have cautioned the petitioner that in case the evidence was not produced, the same would be closed. The order closing the evidence of a party has got far reaching consequences. The main object of the Court is to do substantial justice. The procedural wrangles cannot be allowed to stay in the way of grant of substantial justice. In the present case, sufficient opportunity was granted but still petitioner could not adduce his evidence within those available opportunities. A procedural rule has to be liberally construed and care must be taken so that the technicality may not hamper in the administration of justice. To do justice, sometimes technicalities are to be ignored. If the breach can be corrected, without injury to a just disposal of the case, the Court should not enthrone a regulatory requirement into a dominant desideratum. Accordingly, in the larger interest of the justice, the reasonable opportunity is required to be granted to the party to lead his evidence and for that, opposite party can be compensated by way of costs. 14. Although the petitioner were granted adequate/sufficient opportunities to lead his evidence and the same is clear from zimni orders which are on record but much time was taken as earlier also, no DW was present. An application was moved on behalf of petitioner for direction to summon Handwriting Expert to compare the signatures of applicant Amanjot Singh from the agreement to sell in dispute with his admitted signatures on his passport and from the bank account opened in the year 2005 from the bank. Subsequent dates were taken by respondents for filing reply of that application. 15. By considering the submissions made by learned counsel for the parties and also the fact that much delay has been caused by the petitioner by taking dates as no DW was present, impugned order dated 4.1.2017 (Annexure P-1) is set aside and the present petition is allowed subject to imposition of costs of Rs. 40,000/-, to be deposited with the trial Court. The trial Court is directed to grant one effective opportunity to petitioner to conclude his evidence on that date.