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2019 DIGILAW 1615 (HP)

Ram Lal v. Joginder Singh

2019-10-25

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioners have assailed order dated 29.05.2019, passed by the Court of learned Civil Judge Court No. II, Nalagarh, which reads as under:- "Record perused. Plaintiffs have failed to bring their evidence despite direction on last date of hearing. The Hon'ble Apex Court emphasised that adjournment cannot be granted or pleaded as a rule. There is an obligation upon Courts to adhere to the spirit of the Code of Civil Procedure (CPC), 1908, which envisages the time-bound disposal of cases. This also means that there are certain limits to granting adjournments and thereby protracting litigation. It is reflected in provisions such as Order 17 (concerning adjournments). Broadly stated, Order 17 lays down that a Court should not ordinarily grant repeated adjournments, unless there are exceptional circumstances calling for the same. Thus in these circumstances this Court has no other option except to closed the evidence (in rebuttal) of plaintiffs by the order of this Court. Now come up for arguments on 13-06-2019." 2. Learned Counsel for the petitioners has argued that the order, vide which, evidence of the petitioners was ordered to be closed is per se perverse because this order was passed by the learned Court below by ignoring the fact that two witnesses were served for the previous date, who did not appear in the Court. A perusal of the record demonstrates that for the previous date, i.e. 25.04.2019, both the witnesses, whom plaintiffs intended to examine, stood served but for some reason, they did not appear before the Court. In these circumstances, as per learned Counsel for the petitioners, no fault can be attributed to the plaintiffs and appropriate course for the Court would have been to fix the case on some other date for the purpose of recording the statements of the said witnesses by ensuring the presence of said witnesses, who were not present in the Court on the said date despite having been served with the Court notice. 3. Learned Senior Counsel for respondent No. 1, on instructions, does not disputes this factual position. 4. I have heard learned Counsel for the parties and gone through the impugned order as well as record appended with the petition. 5. Record demonstrates that before 29.05.2019, the case was listed on 25.04.2019. 3. Learned Senior Counsel for respondent No. 1, on instructions, does not disputes this factual position. 4. I have heard learned Counsel for the parties and gone through the impugned order as well as record appended with the petition. 5. Record demonstrates that before 29.05.2019, the case was listed on 25.04.2019. For the said date, though two witnesses were duly served, however, they did not appear in the Court. Ignoring this fact, the Court passed the following order:- "No P.Ws are present. Steps has not been taken. Ld. Counsel for plaintiffs prayed time to produce the witnesses which is allowed for today. Let the rebuttal evidence be produced on 29.05.2019 last opportunity granted." 6. As has been pointed out by learned Counsel for the parties, the order which was so passed on 25.04.2019, in fact, reflects complete non-application of mind on the part of learned Counsel for the parties, especially, learned Counsel for the plaintiffs before the learned Trial Court as also the learned Trial Court. No one bothered even to took into the record to inquire, as to whether the witnesses, to whom notices were issued, were served for the said date or not. Had this little exercise been undertaken either by learned Counsel for the parties before the learned Trial Court or the learned Court below, the parties would have been saved from this unnecessary litigation. In this background, the order which has been passed by the learned Trial Court, which stands assailed by way of present petition, is harsh, as it was not on account of any omission of the present petitioner that the witnesses could not be examined on 29.05.2019. Therefore, the impugned order is not sustainable in the eyes of law. 7. Accordingly, in view of the observations made hereinabove, this petition is allowed and order dated .05.2019, passed by Court of learned Civil Judge, Court No. II, Nalagarh, District Solan, H.P., is set aside. It is ordered that the learned Trial Court shall give another opportunity to the plaintiffs to examine the witnesses, who were summoned for 25.04.2019. In this regard, Court assistance shall be provided to them. However, now fresh steps shall be taken by the plaintiffs for the service of the witnesses. Parties through their respective learned Counsel are directed to appear before the learned Trial Court on 25.11.2019. In this regard, Court assistance shall be provided to them. However, now fresh steps shall be taken by the plaintiffs for the service of the witnesses. Parties through their respective learned Counsel are directed to appear before the learned Trial Court on 25.11.2019. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.