R.S.A No. 2809 of 2008 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 2809 of 2008
Date of decision : July 21, 2009
Ved Parkash,
...... Appellant (s)
v.
Shiv Chand and others,
...... Respondent(s)
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CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
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Present : Mr. Rajiv Kataria, Advocate
for the appellant.
Mr. J.S.Cooner, Advocate
for the respondents.
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1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
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AJAY TEWARI, J (Oral)
This appeal has been filed against concurrent judgments of the
Courts below. The trial Court dismissed the suit of the plaintiff/appellant
under Order 17 Rule 3 of the CPC for failure to lead evidence despite
having availed six opportunities. The lower appellate Court dismissed the
appeal.
Counsel for the appellant has raised the following questions:-
” i) Can the court close the evidence under Order 17
Rule 3 of the CPC without resorting to the provisions of
R.S.A No. 2809 of 2008 ::2::
Higher cost, which can also include punitive cost in the
discretion of the Court ?
ii) Can the Court close the evidence under Order 17
Rule 3 after the grant of three opportunities inspite the
fact that such closure of evidence will result in grave
injustice to the party ?
In support of the first question, counsel for the appellant has
relied upon Salem Advocate Bar Association, Tamil Nadu v. Union of
India, AIR 2005 SC 3353 wherein the Hon’ble Supreme Court held as
follows :-
“……….Even in cases which may not strictly within the
category of circumstances beyond the control of a party,
the Court by resorting to the provision of higher cost
which can also include punitive cost in the discretion of
the Court, adjournment beyond three can be granted
having regard to the injustice that may result on refusal
thereof, with reference to peculiar facts of a case. We
may, however, add that grant of any adjournment let
alone first, second or third adjournment is not a right of a
party. The grant of adjournment by a court has to be on a
party showing special and extraordinary circumstances.
It cannot be in routine. While considering prayer for
grant of adjournment, it is necessary to keep in mind the
legislative intent to restrict grant of adjournments.”
In this view of the matter, I put it to learned counsel for the
appellant if the appellant is ready to pay Rs.50,000/- as costs to the
R.S.A No. 2809 of 2008 ::3::
respondents. Counsel for the appellant has agreed that the appellant shall
pay Rs.50,000/- to the respondents. Counsel for the respondents has also
not seriously disputed that the amount of Rs.50,000/- as costs would be
adequate.
In the circumstances, this appeal is allowed and the judgments
and decrees of the Courts below are set aside. The matter is remanded back
to the trial Court. The parties are directed to appear before the trial Court
on 4.8.2009 on which date the appellant shall deposit Rs.50,000/-. On such
a deposit being made, the trial Court shall grant two effective opportunities
to the appellant to lead his entire evidence at his own responsibility.
However, if the costs are not paid, this appeal shall be deemed to have been
dismissed.
As the main appeal has since been disposed of, all the pending
civil miscellaneous applications, if any, also stand disposed of.
( AJAY TEWARI ) July 21, 2009. JUDGE `kk'