RSA No.1988 of 2007 1
In the Punjab and Haryana High Court,at Chandigarh.
RSA No.1988 of 2007
Decided on November 20,2008.
Mohan Lal -- Appellant
vs.
Babu Singh --Respondent
Present: Mrs.R.P.Dudeja, Advocate, for the appellant
None for the respondent
Rakesh Kumar Jain,J:
The plaintiff filed a suit for possession by way of specific
performance on the ground that the defendant, who is owner of house
measuring 23 square yards bearing property No. B-XV11-2005, Abdullapur
Basti, Ludhiana, had agreed to sell ½ share of the said property to the
plaintiff for a total consideration of Rs. 2 lacs. by executing an agreement
to sell dated 25.1.2002. It is alleged by the plaintiff that the defendant had
received Rs.90,000/- towards earnest money. The sale deed was to be
executed on or before 25.12.2002 but possession of one room was
delivered to the plaintiff on the date of execution of the agreement. It is
the case of the plaintiff that he was ready and willing to perform his part
of contract but the defendant delayed the execution of the sale deed on one
pretext or the other. The plaintiff remained present before the office of
RSA No.1988 of 2007 2
the Sub Registrar on 26.12.2002 but the defendant did not turn up. Since
the defendant failed to execute the sale deed inspite of notice served by
the plaintiff and started threatening to dispossess him illegally, therefore,
the present suit was filed for specific performance seeking permanent
injunction as well.
In the written statement, it was alleged by the defendant that
the plaintiff has not come to the Court with clean hands. It was alleged that
he took loan of Rs. 49,200/- against which the plaintiff had got executed an
agreement dated 15.11.2000 for a sum of Rs.60,000/- including interest
for one year. It was further alleged that the plaintiff received a blank
cheque from the defendant on 15.11.2000 and the plaintiff got the time
extended vide agreement dated 25.1.2002. It was further averred that
defendant was liable to pay Rs.60,000/- along-with interest.
The plaintiff filed replication denying the averments made in
the written statement. On the pleadings of the parties, following issues were
framed by the trial Court:-
1. Whether the plaintiff is entitled to possession of the suit land as
claimed ?OPP
2. Whether the plaintiff is entitled to permanent injunction as
prayed for ? OPP
3. Whether defendant executed an agreement to sell dated
25.1.2002 ? OPP
4. Whether suit is maintainable in the present form ? OPP
5. Whether plaintiffs has not come to the Court with clean hands ?
OPP
6. Relief:
RSA No.1988 of 2007 3
Since the plaintiff availed sufficient opportunity to conclude
his evidence but failed to produce the same. Learned counsel for the
plaintiff made a statement in the trial Court on 04.5.2006 requesting for one
adjournment to conclude his evidence. The adjournment was granted for
18.7.2006. But on that date, no witness of the plaintiff was present and the
case was adjourned to 2.8.2006. Again on 2.8.2006, the plaintiff failed to
produce even a single witness and as such, his evidence was closed by
order of the Court.
Faced with this situation, the defendant suffered a statement
in the Court that he does not want to lead any evidence. The trial Court
vide its judgment and decree dated 02.8.2006 dismissed the suit of the
plaintiff on the ground that even the plaintiff has not entered the witness
box to support his case, therefore, all the averments made in the pleadings
have not been proved.
The plaintiff filed an appeal before the learned first Appellate
Court and urged that the plaintiff’s evidence has been closed by order of
the Court on 2.8.2006 without affording due opportunity. It was urged
that the plaintiff is an old aged person, not mentally fit and had remained
ill for the last more than six months, consequently, he could not put in
appearance in the Court to prosecute his case personally. The learned first
Appellate Court after considering the arguments raised by the learned
counsel for the appellant observed thus:-
“As emerges out of the learned trial Court’s record the issues in
this case were framed on 4.3.2004. The application moved for grant of ad-
interim injunction was disposed of on 20.4.2006 on which date the case
was adjourned to 22.11.2005 for plaintiff’s evidence. Obviously seven
RSA No.1988 of 2007 4
months’ time was granted to the plaintiff for leading his evidence. On
22.11.2005 his evidence being not present the case was adjourned to
12.1.2006 then to 17.2.2006 then to 10.3.2006 and then to 5.4.2006. On all
these dates the evidence of the plaintiff was not present. Ultimately on
5.4.2006 under compelling circumstances the learned trial Court granted
the last opportunity to the plaintiff to adduce his evidence on 24.5.2006.
On that date again the position was the same and the case was adjourned to
18.7.2006 by granting last opportunity. Again on that date the plaintiff’s
evidence was not present and ultimately the case was adjourned to
2.8.2006 for evidence of the plaintiff subject to payment of costs of
Rs.300/-. On that date too, the plaintiff’s evidence was not present and in
this scenario the learned Court might had been of the view that the
plaintiff was altogether disinterested to lead his evidence and was left with
to alternative except to close evidence by order and then passed such order.
The reference to the above mentioned order sheets reveal that the plaintiff
availed more than one year period to lead his evidence, though as per
amended provisions of the Civil Procedure Code only three adjournments
were to be granted to lead evidence. The above mentioned adjournments
leave no room for doubt that the plaintiff was afforded large number of
opportunities to lead his evidence, even by crossing the limits of time
envisaged by the Civil Procedure Code. Mr.Chhiba has argued that the
plaintiff being in old age was mentally unfit and he remained sick, but the
record is quite barren to show such evidence. Mr. Chhiba has referred to
the observations made in Murti Mata Bhadhar Kali and Another (supra). A
glance through the same would reveal that in that case, the case was
transferred and the transferee Court closed evidence, though the plaintiff
RSA No.1988 of 2007 5
never knew that the case has been transferred and he had appeared along-
with witnesses in the Court where the case was earlier pending. It was in
these premises that his Lordship was pleased to observe that the justice
warrants that full opportunity is given to the plaintiff to lead his evidence
and is not made to suffer on technicalities and the order vide which the
evidence was closed was set aside. Obviously the position in the instant
case is quite different from the one which existed in Re.Murti Mata
Bahadhar Kali and Another (Supra). As revealed by the record the
plaintiff never made any attempt to file P.F, D.M and list of witnesses for
summoning his evidence. Further more, if he himself was sick he could
have filed P.F, D.M. and List of witnesses through his counsel. In my
opinion, his conduct does not warrant to grant him any more opportunity to
lead his evidence. Sequelly no fault can be found with the findings
returned by the learned trial Court on all the issues. Consequently, this
being a case of no evidence, the findings returned by the learned trial Court
on all the issues call for no interference and are affirmed”.
In view of the above discussion, the suit of the plaintiff was
also dismissed.
Learned counsel for the appellant has practically raised the
same argument which was raised before the learned first Appellate Court
that no proper opportunity has been afforded to him by the Court below
to lead evidence.
In view of the above detailed discussion in para No. 11 of the
judgment of the learned first Appellate Court which has been reproduced
here-in-above, I do not find any merit in the argument raised by the learned
RSA No.1988 of 2007 6
counsel for the appellant and this appeal is, thus, dismissed without any
order as to costs.
November 20,2008 (Rakesh Kumar Jain)
RR Judge
Refer to Reporter--Yes / No.