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2019 DIGILAW 1016 (RAJ)

Mohan v. Sandeep Janu

2019-04-04

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. 1. Appellant has preferred this First Appeal aggrieved by Judgment and Decree dated 29.08.2018 passed by Additional District Judge No. 2, Jhunjhunu whereby plaintiff-appellant's plaint for cancellation of sale-deed and permanent injunction was dismissed. 2. The only ground raised in the appeal is that the Court below dismissed the suit without affording opportunity of producing evidence and without complying with the provisions of CPC. 3. It is contended by the counsel for the appellant that if plaintiff does not produce evidence the course available for the Court is, to proceed under the provisions of Order IX CPC. It is contended that the Court instead of proceeding under Order IX of CPC erred in closing the evidence of plaintiff and dismissing the suit. 4. Counsel for the appellant has placed reliance on Jagat Singh Rathore Vs. Municipal Board Pushkar & Ors. (2014 WLC (Raj.) UC 412), Smt. Sharda Choudhary Vs. Mal Singh (2017 (1) WLC (Raj.) 703) and Ghisaram Vs. Smt. Amba Devi & Ors. (2015 (1) WLC (Raj.) 737). 5. Counsel for the respondents has opposed the first appeal. His contention is that plaintiff was afforded as many as nine opportunities to produce his witnesses. Opportunity was also afforded subject to payment of cost of Rs. 500/-. Still plaintiff did not produce any witness before the Court, hence, the Court was justified in closing evidence of the plaintiff and dismissing the suit. It is contended that provisions of Order IX CPC are not applicable as plaintiff was represented by his pleader on all dates. 6. Counsel for respondents has placed reliance on Shiv Cotex Vs. Tirgun Auto Plast Private Limited & Anr. ( 2011 9 SCC 678 ). 7. I have considered the contentions. 8. Order XVII Rule 3 CPC reads as under: "3. 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." 9. Sub-clause (a) of Rule 3 Order of XVII CPC thus, empowers the Court to decide the suit if party to a suit to whom time has been granted fails to produce his evidence or produce his witness. 10. The rulings relied upon by the counsel for the appellant Ghisaram Vs. Smt. Amba Devi & Ors. (supra) was a case where plaintiff failed to produce evidence inspite of last opportunity and pleader of plaintiff pleaded no instructions. High Court held that suit can be dismissed only under Rule IX CPC but not on merit. In Smt. Sharda Choudhary Vs. Mal Singh (supra) the Court held that when claimant or his advocate were absent on the date fixed for evidence. Tribunal chose to close evidence, the proper course was to proceed under Order IX CPC. In Jagat Singh Rathore Vs. Municipal Board Pushkar & Ors. (supra) the High Court held that in absence of plaintiff and his counsel the Court should dismiss the suit in default and not on merit. 11. The above judgments have no applicability to the facts of the instant case. In all the judgments referred to by the counsel for the plaintiff-appellant, plaintiff and his pleader were not present in Court, in those circumstances sub-clause (b) of Rule 3 of Order XVII CPC would become applicable. However, in the present case plaintiff's pleader was present before the Court, hence, sub-clause (a) of Rule 3 of Order XVII CPC would apply and when the Court had given as many as nine opportunities to the plaintiff to adduce evidence including an opportunity given on cost, Court had not committed any illegality or error in closing the evidence of plaintiff. 12. Apex Court in Shiv Cotex vs. Tirgun Auto Plast Private Limited & Anr. (supra) was dealing with a case where plaintiff failed to produce evidence inspite of three opportunities. High Court on misplaced sympathy and non-existent justification observing that the stakes in the suit were very high remanded the suit to the trial Court for fresh disposal after giving plaintiff opportunity to lead evidence. The Apex Court observed that it is high time the Courts become sensitive to delay in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The Apex Court observed that it is high time the Courts become sensitive to delay in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The Apex Court further observed that no litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. The Apex Court observed that though the cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of Order XVII CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. 13. From the perusal of the order-sheets of the Court the case was fixed for evidence of plaintiff on 26.7.2017. No witness was produced on the said date. Thereafter on 31.8.2017 affidavits of certain witnesses were produced. Thereafter on 7.3.2018 last opportunity was afforded to the plaintiff to produce his evidence. In the interest of justice one more opportunity was granted on 11.4.2018 and 17.5.2018. On 4.7.2018 one more opportunity was granted to the plaintiff on a cost of Rs. 500/-. Thereafter again on 30.7.2018 an opportunity was granted and in the interest of justice last opportunity was granted on 16.8.2018. On 28.8.2018 time was again sought by the counsel for the plaintiff to adduce evidence, the Court however closed the evidence. 14. On 4.7.2018 one more opportunity was granted to the plaintiff on a cost of Rs. 500/-. Thereafter again on 30.7.2018 an opportunity was granted and in the interest of justice last opportunity was granted on 16.8.2018. On 28.8.2018 time was again sought by the counsel for the plaintiff to adduce evidence, the Court however closed the evidence. 14. In view of the fact that ample opportunities beyond the scope of proviso to Order XVII Rule 1 CPC had been afforded to the plaintiff-appellant. The Court was justified in closing the evidence and proceeding under sub-clause (a) of Rule 3 of Order XVII CPC. 15. I do not find any error in the impugned judgment and decree passed by the Court below. 16. Hence, the first appeal is dismissed. Decree be prepared accordingly. 17. Stay application also stands disposed.