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Himachal Pradesh High Court · body

2017 DIGILAW 868 (HP)

Dile Ram v. Gaurav Arora

2017-07-28

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal appellant has assailed the judgment passed by the Court of learned District Judge, Kullu in Civil Appeal No. 41 of 2009 dated 26.10.2010, vide which learned appellate court while allowing the appeal filed by present respondents No.1 and 2 (plaintiffs) set aside the judgment and decree passed by the Court of learned Civil Judge (Sr. Division) Lahaul-Spiti at Kullu in Civil Suit No. 8 of 2008 dated 18.6.2009, whereby learned Civil Judge had dismissed the suit so filed by plaintiffs under Order 17 Rule 3 CPC. Records demonstrate that suit for possession was filed by present respondents/plaintiffs (hereinafter referred to as ‘plaintiffs) for retraining defendant by way of permanent injunction from causing interference over the suit land and for restraining defendant from dispossessing them from the suit land and the factory building standing thereon. 2. The suit so filed by the plaintiffs was resisted by the defendant by way of written statement. 3. On the basis of pleadings of the parties, learned trial court framed the following issues:- “1. Whether the plaintiffs are in possession of the suit property? OPP. 2. If issue No.1 is proved, whether the plaintiffs are entitled for injunction? OPP. 3. Whether the suit is within time? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the suit has been valued properly for the purpose of Court fee and jurisdiction? OP parties. 6. Relief.” 4. After framing of issues, which were so framed on 18.9.2008, plaintiffs were given time to lead evidence and the case was ordered to be listed on 18.12.2008 for plaintiffs’ evidence. On 18.12.2008 learned trial court passed the following order:- “No PW is present, nor any steps taken. Adjournment prayed. Allowed. Now to come up for plaintiffs’ evidence. Put up on 6.4.2009.” 5. On 6.4.2009, learned trial court passed the following order:- “No PW is present. Time prayed for plaintiff evidence. Allowed. Now to come up for plaintiff’s evidence on 18.6.2009. this is last opportunity. Steps be taken.” 6. On 18.6.2009 also no PWs was present and accordingly learned trial court dismissed the suit vide separate judgment under Order 17 Rule 3 of the CPC. 7. The judgment and decree so passed by learned trial court was challenged in appeal. Allowed. Now to come up for plaintiff’s evidence on 18.6.2009. this is last opportunity. Steps be taken.” 6. On 18.6.2009 also no PWs was present and accordingly learned trial court dismissed the suit vide separate judgment under Order 17 Rule 3 of the CPC. 7. The judgment and decree so passed by learned trial court was challenged in appeal. Learned appellate court while setting aside the judgment and decree so passed by learned trial court remanded the case back to the learned trial court with the direction to decide the same afresh after affording one opportunity to the plaintiffs to lead evidence by, inter alia, holding that order so passed by learned trial court was liable to be set aside, as plaintiffs were not warned by learned trial court before taking extreme step of closing evidence and dismissing the suit. 8. The judgment and decree so passed by learned appellate court stands assailed by way of this appeal. 9. Despite service, as respondents/plaintiffs did not appear before the Court, accordingly they were ordered to be proceeded against ex parte on 13.7.2017. 10. It is pertinent to take note of the fact that though there were two plaintiffs before learned trial court, however, the judgment and decree passed by learned trial court was assailed only by one of the plaintiff’s, namely, Gaurav Arora. 11. I have heard learned counsel for the appellant/defendant and have also gone through the records of the learned courts below. 12. A perusal of the impugned judgment and decree demonstrates that what weighed with learned appellate court while deciding the judgment and decree passed by learned trial court was that learned trial court did not warn the plaintiffs before taking extreme steps of closing evidence and dismissing the suit. In my considered view, findings returned by learned appellate court that the judgment and decree passed by learned trial court was liable to be set aside, as the learned trial court had not warned the plaintiffs before taking extreme steps of closing evidence and dismissing the suit are erroneous and not sustainable on facts or law. 13. I have already quoted the orders which were passed by learned trial court, while granting opportunities to the plaintiffs to lead evidence. 13. I have already quoted the orders which were passed by learned trial court, while granting opportunities to the plaintiffs to lead evidence. First opportunity granted by learned trial court to plaintiffs to lead evidence was on 18.9.2008, on which date the case was ordered to be listed for recording the evidence of plaintiffs’ witnesses on 18.12.2008. Second opportunity was granted on 18.12.2008, when the case was ordered to be listed for recording plaintiffs’ evidence on 6.4.2009. Third opportunity was granted by learned trial court to the plaintiffs on 6.4.2009, when the case was ordered to be listed on 18.6.2009 for recording plaintiffs’ evidence. A perusal of order dated 6.4.2009 demonstrates that it was made clear by learned trial court that said opportunity was last opportunity. 14. In view of the fact that it stood recorded in the order so passed by learned trial court that the same was last opportunity for the plaintiffs to lead evidence, it cannot be said that learned trial court did not warn the plaintiffs before taking extreme steps of closing evidence and dismissing the suit. When even after last opportunity having been granted to them, plaintiffs chose neither to take any steps to produce/lead any evidence on 18.6.2009 nor they (plaintiffs) produced any witness on the said date then obviously it cannot be said that learned trial court proceeded against the plaintiffs without any sufficient warning. It is not in dispute that procedure is handmaiden of justice and the endeavour of the Court of law is to advance the cause of justice but then, in case a party adopts ways and means of delaying legal proceedings then the Court obviously at some stage has to take a call and pass appropriate orders. This is exactly what was done by learned trial court. It afforded three opportunities to the plaintiffs to lead evidence and closed the evidence, as plaintiffs failed to lead evidence despite final opportunity. 15. This is exactly what was done by learned trial court. It afforded three opportunities to the plaintiffs to lead evidence and closed the evidence, as plaintiffs failed to lead evidence despite final opportunity. 15. Order 17 Rule 3 CPC reads as under:- “Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default.- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under rule 2.]” 16. In the absence of plaintiffs leading any evidence in support of their pleadings, learned trial court proceeded under the provisions of the abovementioned Rule and dismissed the suit so filed by plaintiffs for want of cogent evidence on record to prove and substantiate the case of the plaintiffs. The act of the learned trial court of proceedings under Order 17 Rule 3 CPC and deciding the suit in consonance with the provisions of the said Rule, in my considered view cannot be faulted with. Learned appellate court while setting aside the judgment and decree failed to appreciate that learned trial court had given ample opportunities to the plaintiffs to lead evidence but when despite repeated opportunities plaintiffs took no steps to lead evidence, learned trial court was not to wait till eternity for the plaintiffs to lead evidence. I have already held above that the findings returned by learned appellate court to the effect that plaintiffs were not warned by learned trial court before closing their evidence and dismissing the suit are erroneous findings which are not borne out from the records of the case. Accordingly, in view of the above findings, this appeal is allowed and while upholding the judgment and decree passed by learned trial court, this Court sets aside the judgment and decree passed by learned appellate court in Civil Appeal No. 41 of 2009 dated 26.10.2010 titled Gaurav Arora Vs. Dile Ram and another. Pending miscellaneous application if any also stands disposed of.