Regular Second Appeal No. 3733 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 3733 of 2007. (O&M)
Date of Decision: 17.2.2009
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Hardial Singh & Ors. .. Appellants
VS.
State of Haryana & ors. .. Respondents.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:-
Mr. Davinder Lubana, Advocate
for the appellants.
Mr. Ajay Gulati, AAG Haryana.
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ARVIND KUMAR, J.
This is plaintiffs’ regular second appeal.
The plaintiffs filed a suit for declaration to the effect that they
are owners in possession of the land measuring 13 bighas 3 biswas on the
basis of registered sale-deed dated 8.4.1996 and that the entries in revenue
record and the cancellation of allotment of the original allottee by defendant
No.2 are null and void and in contravention of provisions of Displaced
Persons (Compensation and Rehabilitation Act) sought restraint order to the
effect that the defendants be restrained from interfering in their peaceful
possession over the suit property.
The defendants contested the suit tooth and nail. The issues
were framed by the learned trial court on the basis of pleadings of the
parties.
The learned trial court dismissed the suit by invoking the
provisions of Order 17 Rule 3 CPC, since no evidence was adduced on
behalf of the plaintiffs in support of their claim.
The appeal preferred by them was also dismissed by the learned
First Appellate Court below.
On 19.11.2007 when this appeal came up for hearing, it was
ordered to be heard along with RSA No. 3474 of 2007 having an identical
issue. But due to inadvertence this appeal was not listed along with
aforesaid RSA and now the learned counsel for the appellants has placed on
Regular Second Appeal No. 3733 of 2007 2
record the copy of judgment passed in RSA No. 3474 of 2007, decided on
24.7.2008 wherein this Court, under similar circumstances, remanded the
case to the trial Court with a direction to grant two opportunities to lead
their evidence.
Adverting to the facts of present case, admittedly the plaintiffs
have been non-suited on the ground that they have failed to produce any
evidence despite availing sufficient opportunities and thus, failed to
substantiate their plea and accordingly their suit has been dismissed on mere
technicalities and not on merits. In the case of Sardar Amarjit Singh
Kalra (dead) by LRs and others Vs. Parmod Gupta (Smt.)(dead) by
LRs and others, 2003(3) SCC 272, the Hon’ble Supreme Court has held
that the rules of procedure are handmaid of justice and are meant to enhance
the same and not to scuttle it. That apart, it should be the endeavour of the
Courts to decide the lis between the parties on merits and not on the basis of
mere technicalities and the procedure would not be used to discourage the
substantial and effective justice but would be construed as to advance the
cause of justice.
In view of the above, this Court is of the considered view that
the plaintiffs are entitled to avail two effective opportunities for leading
their evidence. Even otherwise, no prejudice would be caused to the
defendants, who not only have an opportunity to cross examine the
witnesses but can well be compensated with costs.
As a sequel to the above discussion, the instant appeal is
allowed and the impugned judgments and decrees passed by the Courts
below are set aside subject to payment of costs of Rs. 3000/-, to be paid by
the plaintiffs and the matter is remitted back to the learned trial court for
deciding the same afresh after affording two effective opportunities to the
plaintiffs for adducing their evidence and thereafter to proceed with the
case, in accordance with law. The parties through their counsel are directed
to appear over there on 4.3.2009. Lower Court record, if received, be
returned back immediately to the quarters concerned.
(ARVIND KUMAR)
JUDGE
February 17,2009
Jiten