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2021 DIGILAW 485 (RAJ)

Chain Singh v. Sabal Singh

2021-02-25

ARUN BHANSALI

body2021
JUDGMENT 1. At the request of learned counsel for the parties, the appeal has been finally heard. 2. This appeal is directed against judgment & decree dated 06.11.2019 passed by Additional District Judge No.2, Barmer, whereby, the suit filed by the appellant for injunction has been rejected. 3. The suit was filed by the appellant seeking permanent injunction in relation to a bada. 4. The suit was filed on 31.10.2013. Initially, an application under Order VII Rule 11 CPC was filed, which came to be rejected by the trial court by its order dated 23.05.2015, whereafter, the written statement was filed on 05.12.2016 and the issues were framed on 27.01.2017, the plaintiff filed his affidavit in evidence on 04.07.2017, whereafter, the process of seeking / granting adjournments for production of evidence started, whereby, on three occasions out of 22 occasions the plaintiff was present, on one occasion the presiding officer was on leave and on rest of the occasions, except for occasion as noticed here-in-before, the plaintiff was not present. 5. Further on three occasions, in between, the matter was referred to Lok Adalat / mediation, however, the parties did not appear before the Lok Adalat / for mediation. Whereafter, on 16.10.2019, the trial court closed the evidence of the plaintiff as he was not present on that date for cross-examination and on the same date the defendant also closed his evidence and the matter was fixed for final arguments on 06.11.2019 on which date, the present impugned judgment was delivered dismissing the suit for lack of evidence. 6. Learned counsel for the appellant made submissions by way of mercy that the appellant may be granted one opportunity on which date he will produce all his evidence and that the appellant is prepared to pay cost in this regard. 7. Submissions were attempted to be made seeking to justify that the plaintiff whenever was present, the defendant took time and, therefore, he cannot be penalized on that count. 8. Learned counsel for the respondents made submissions that issues were framed on 27.01.2017 and despite passage of about three years, the evidence was not led and, therefore, the trial court was justified in closing the evidence and deciding the suit. 9. 8. Learned counsel for the respondents made submissions that issues were framed on 27.01.2017 and despite passage of about three years, the evidence was not led and, therefore, the trial court was justified in closing the evidence and deciding the suit. 9. Submissions were also made that on merits also the appellant has no case and, therefore, sending back the matter to the trial court would be an empty formality and, therefore, the appeal be dismissed. 10. I have considered the submissions made by learned counsel for the parties and have perused the material and the record of the trial court. The scanning of the order sheets right from 27.01.2017 till the evidence was closed on 16.10.2019, simply indicates the lackluster attitude of the parties and the counsel in liberally seeking adjournments and the Court granting adjournments without even, apparently, looking at the fact that how many adjournments for the same purpose had already been granted in violation of provisions of Order XVII CPC. 11. The order sheets further reflect that while on 16.10.2018, 11.12.2018, 06.03.2019, 08.05.2019, 17.07.2019 and 09.09.2019 the adjournment on mere askance for production of evidence was granted by the Court, suddenly on 16.10.2019, the trial court became aware of the fact that the matter was pending for evidence since 03.03.2017 and that twenty two opportunities have been granted and, therefore, there was no justification for grant of further opportunity and closed the evidence. 12. In fact, from a look at the order sheets, it is apparent that the evidence should have been closed by the trial court long back, however, once the Court has liberally granted adjournments for over three years, the closing of the evidence, suddenly on 16.10.2019, when the party and the counsel had become used to getting adjournments without indicating a reason, apparently took the counsel and the appellant by surprise and the same has resulted in the suit getting decided / dismissed for lack of evidence. 13. Though a look at the fact that over twenty two opportunities were granted to the appellant to lead evidence, gives an impression that sufficient opportunity was granted, however, while closing the evidence without any warning looking to the past state of order sheets, apparently has led to the appellant, loosing the opportunity to lead evidence. 14. 13. Though a look at the fact that over twenty two opportunities were granted to the appellant to lead evidence, gives an impression that sufficient opportunity was granted, however, while closing the evidence without any warning looking to the past state of order sheets, apparently has led to the appellant, loosing the opportunity to lead evidence. 14. Though, apparently, there is no justification forthcoming for not leading the evidence for over three years, looking to the nature and manner in which the trial court has proceeded, apparently closing the evidence all of a sudden has led to denial of opportunity to the appellant. 15. So far as the submissions made by learned counsel for the respondents pertinent to the merit of the suit is concerned, without the parties leading evidence, it cannot be said that the plaintiff has no case. 16. In view of the above discussion, the prayer made by learned counsel for the appellant for grant of one opportunity to lead evidence in the matter, appears to be justified, however, for all the delay which has been caused by non-production of the evidence, the appellant deserves to be visited with exemplary costs. 17. In view thereof, the appeal filed by the appellant is allowed. The judgment and decree dated 06.11.2019 passed by the trial court is set aside. The order dated 16.10.2019 is also set aside. The parties shall appear before the trial court on 01.04.2021, on the said date further affidavits in evidence, if any, which the plaintiff wants to produce as witnesses would be filed and the trial court would fix 07.04.2021 as the date on which the plaintiff's witnesses would remain present before the Court for cross-examination. It is expected of the respondents to cross-examine the witnesses on the said date. Whereafter, the defendant would be permitted to lead evidence and, thereafter, the trial court would decide the matter in accordance with law. 18. It would be required of the appellant to pay as costs Rs. 15,000/- to the defendants and deposit Rs. 15,000/- with the District Legal Services Authority, Barmer, before 01.04.2021, on which date the appellant would be required to produce receipts both from the defendants as well as the District Legal Services Authority before the Court, which would be per-requisite for Court to take the affidavits, if any filed, on record and for further proceedings. 19. 15,000/- with the District Legal Services Authority, Barmer, before 01.04.2021, on which date the appellant would be required to produce receipts both from the defendants as well as the District Legal Services Authority before the Court, which would be per-requisite for Court to take the affidavits, if any filed, on record and for further proceedings. 19. The record of the trial court be sent back immediately.