JUDGMENT
Wanchoo, C.J.
1. This is an appeal by Mohanlal against the order of the Additional Civil Judge, Jodhpur, dismissing the suit brought by the appellant,
2. The suit was filed as far back as 1941. After it has been pending for about six years in the trial Court it was dismissed for want of evidence and that was because the plaintiff appellant Mohanlal did not examine himself and the Court had to close down the evidence of the plaintiff. It is admitted by learned counsel for the plaintiff-appellant that if the plaintiff is not examined, the other evidence on the record is utterly insufficient to prove the case for the plaintiff. Any how, after the first dismissal of the suit, the plaintiff came in appeal to the High Court of the former State of Marwar. On 3-7-1947 there was a remand by the High Court for examining the plaintiff and certain other witnesses.
3. We would have expected that after the experience of the previous occasion when the plaintiff’s evidence had been ordered to be closed, the plaintiff would have been careful this time to produce the evidence which he had been permitted by the High Court to do. But we find that out of the four witnesses which the plaintiff was permitted to produce, namely, himself, the ‘munim’ of Milapchand Lalchand, and two others Chaturbhuj and Ramchander, the plaintiff only took steps to produce the ‘munim’. Chaturbhuj died and could not be produced and time was allowed again and again for the production of Ramchander and for plaintiff’s own examination. On 19-1-1949 it happened that Ramchander was not available and the plaintiff also was absent from the Court. Therefore, the Court again ordered on that date that the plaintiff’s evidence be closed.
4. But it seems that on an application of the plaintiff, the Court was prevailed upon to give him one more chance to produce Ram Chander and examine himself. This order was passed on 19-3-1949. Thereafter Ramchander was never available for production but the evidence of the plaintiff was to begin on 18-8-1949. On that date the plaintiff was present in Court but it was submitted on his behalf that his evidence would take a whole day. As the Court was not in a position to spend the whole day on this case, it was postponed to 24-10-1949. When the case came up on the 24th, the statement of the plaintiff began but on that day the plaintiff said after some time that he was feeling ill. The case was, therefore, adjourned to 25-10-1949.
5. On this date the examination of the plaintiff began but then it was found that the various entries in the ‘bahis’ (the number of entries was in thousands) had not been marked with slips. Therefore, in order to avoid waste of time, the Court directed the counsel for the plaintiff to flag the entries in the original ‘bahis’ which were to be proved. Counsel wanted time for this purpose & therefore, the case was postponed to 28-11-1949. It will be seen, thus, that on the last two days the postponement was due to the plaintiff while on the 18th August it was due to the fact that the Court was told that the case would take longer than it had estimated.
6. On the 28th November the plaintiff was absent and an application was filed on his behalf to the effect that he was ill and had gone to Amraoti for treatment. It may be mentioned that the plaintiff is a resident of Pipar in Marwar but he somehow went to Amraoti, which is hundreds of miles away, in Berar for treatment. The case was then postponed to 27-2-1950. On that date the plaintiff was present and part of his statement was taken but it could not be finished and the question arose of finding a clear day for the evidence of the plaintiff. The Court then fixed 3rd and 4th May 1950 for this purpose and directed that no other work should be fixed for those days as there was a large number of documents to be proved and all the time would be required for the evidence of the plaintiff.
7. We now come to the incidents of 3rd and 4th May. The plaintiff knew that these two days had been fixed specially for his evidence and had been kept free from other work. He also knew that on two occasions his evidence had been closed and once he had to go in appeal to the High Court to be able to produce his evidence and on the other occasion he had persuaded the trial Court to change the order. In such circumstances we would have expected the litigant to be careful. Let us now look to what happened on the 3rd May. On that date the plaintiff was absent. His counsel appeared but obviously he had no instructions whatsoever from his client. He said that it appeared to him that his client had not come on account of some misunderstanding or some “unsurpassable and unavoidable” circumstances. He, therefore, prayed that as the matter had been fixed for 4th May also, it may be decided on the 4th Counsel for the respondents very rightly objected that as the counsel for the appellant had no instructions, the case should not be adjourned to the 4th May and the evidence of the plaintiff should be closed at once. But the Court said that it would decide the matter on the next day.
8. Then we come to the 4th of May. On that date counsel for the plaintiff produced a telegram which he had received from the plaintiff in which it was said that the plaintiff was ill and therefore could not attend the Court. The nature of the disease was not mentioned but it was said that a medical certificate had been sent. Learned counsel for the plaintiff, therefore, prayed for adjournment on the ground of his client’s illness. The trial Court in its order dated 4-5-1950 has narrated the entire history of the case which we have set out in brief. He took the view that he was not bound to act on this telegram because there could be no presumption firstly as to the person who had sent the telegram and secondly as to the correctness of the contents thereof. It, therefore, very rightly held that there was nothing before the Court to justify the absence of the plaintiff on the 3rd and 4th May 1950 and it ordered that the plaintiff’s evidence be closed. The defendants’ counsel then stated that the defendants did not want to produce any evidence and the entire case was then closed and arguments were fixed for 25-7-1950.
9. Then began frantic efforts by the plaintiff, to do what should have been done on the 3rd of May. We find that an application was presented on the 5th May along with a medical certificate said to have been given by one Dr. Rathi on the 2nd of May 1950 to the effect that Mohanlal was suffering from double pneumonia since 29-4-1950. Then on the 10th July it is said that an application with an affidavit was filed for setting aside the order closing the evidence. This application and the affidavit in support of it are missing from the record and, therefore, on the 27th of July copies were produced. It was said now that the plaintiff had been ill since 4-4-1950 and had got fever.
During the course of that illness, he got double pneumonia on 29-4-1950 and was, therefore, unable to come on the dates fixed. The application for reopening the evidence was opposed by the defendants and the Court eventually dismissed the application on 28-11-1950 and fixed 4th December for arguments. On that date the plaintiff appeared in Court and an application was made praying that he was present and should be examined. That application was also dismissed by the Court and eventually as there was no evidence worth the name in favour of the plaintiff’s case, the suit, was dismissed on 7-12-1950.
(10) Three main questions have been urged before us:
(1) that the Court was wrong in not postponing, the suit on 4-5-1950;
(2) that in any case after the affidavit that had been filed by the plaintiff in July 1950 the Court should have set aside the order closing, the evidence on the 4th of May and reopened, the case; and
(3) that even if that was not possible, the plaintiff was present on the 4th December and the Court was wrong in not examining him.
11. So far as Court’s order of , the 4th May is concerned, we are of opinion that it was very correct. If anything, the Court should have closed the evidence of the plaintiff on the 3rd May when there was nothing before it, not even a telegram, to show why the plaintiff was absent. Even on the 4th May all that is there is a telegram received from the plaintiff. Such telegrams are no evidence whatsoever and the Courts are not bound to act on them. Even learned counsel for the plaintiff knew nothing more than what was in the telegram and the Court rightly pointed out the dilatory conduct of the plaintiff during the course of years for which his litigation had lasted. We are clearly of opinion that the trial Court’s order of 4th May was perfectly justified and there is no reason to interfere with it.
12. Then it is urged that even if the order of 4th May was justified in the circumstances in which it was passed, the plaintiff was able to show by affidavit and by the certificate of a doctor that he was really ill and could not attend the Court on the 3rd and 4th May. It is also pointed out that the defendants did not file any counter-affidavit to show that the plaintiff was not ill and, therefore, the Court should have accepted the affidavit of the plaintiff supported by the certificate of the doctor. It may be mentioned that the defendants not being residents of Amraoti were not in a position to file any affidavit to show that the plaintiff was in fact seen walking about hale and hearty on or about the 3rd or 4th of May. They would have no means of knowledge of such facts. But let us see what the conduct of the plaintiff was and whether that conduct is such that we can place reliance on the affidavit of the plaintiff and the certificate of the doctor.
In the affidavit, the plaintiff says that he had been ill since the 4th of April, but no information of this illness was conveyed to his counsel till at any rate the 3rd of May. It is urged on his behalf that the plaintiff was hoping to get well and, therefore, he may not have taken steps. Then he got double pneumonia on the 29th April. It is at least clear that on that date, at any rate, the plaintiff could not have felt that it would be possible for him to attend Court on the 3rd May. Knowing the past history of the case, we would have expected a person like the plaintiff to have taken care immediately to have a certificate from the doctor who was attending on Mm and send it to his counsel. The certificate which has been produced is dated the 2nd of May but the doctor in that certificate says that the plaintiff has been suffering from double pneumonia since 29th April. So the doctor must have been, apparently, attending the plaintiff since the 29th April. But no steps were taken to see that counsel was in possession of facts before the 3rd of May to enable him to move for adjournment.
Further the telegram which was produced in Court on the 4th May did not even mention the disease with which the plaintiff was suffering though it said that a medical certificate had been sent. The certificate was obtained on the 2nd of May and it seems to us that it struck the plaintiff just a day before the case was to be heard that he must produce some proof to be able to make out a case for some kind of adjournment. Therefore, the certificate appears to have been procured somehow or other on the 2nd of May. The failure of the plaintiff in this case to inform his counsel in time so that the latter could get adjournment from the court on the 3rd of May is, in our opinion, sufficient to discredit the later affidavit filed by the plaintiff and the certificate of the doctor on which he relies. It is remarkable that he fell ill always in Amraoti so that the defendants may never have a chance to give an affidavit to show that they saw the plaintiff hale and hearty on any particular day. We, therefore, in the circumstances of this case are not prepared to differ from the lower Court on the value to be put on the belated affidavit and the certificate of the doctor. The Court below was, therefore, in our opinion right in refusing to set aside the order closing the evidence.
13. Then we come to the last point, namely that the plaintiff was present on 4-12-1950 in Court and therefore the Court was bound to examine him as the judgment had not been delivered till then. Reliance in this connection is placed on — ‘Monilal Bandopadhya v. Khiroda Dasi’, 20 Cal 740 (A). In that case a certain suit was fixed for hearing before the Munsiff on 30-12-1890. The defendants applied for adjournment on that date on the ground that their witnesses who had been summoned to attend were not present. The defendants also wanted fresh process to be issued to the witnesses. This application was rejected and the evidence for the plaintiffs recorded. Thereafter the defendants were compelled to lead evidence and after one of the defendants had examined himself, as there was no other evidence for the defendants present, the case for the defendants was closed. 31st December was then fixed for judgment.
On that date the defendants got some of their witnesses in attendance in court and prayed that these witnesses be examined. The Munsiff refused the application and the question that arose before the High Court was whether the Munsiff was right in those circumstances in shutting out the evidence of the defendants. The case was before a Division Bench and the learned Chief Justice took the view that
“the omission to examine the defendants’ witnesses on the 31st December was a substantial error in procedure, and that the Munsiff had therefore exercised his discretion wrongly”.
The other learned Judge Ghose J. was doubtful of the view taken by the learned Chief Justice, for he said that he agreed with the order of remand which the Chief Justice proposed to make but added that he must confess that he did so after some hesitation. Ghose J. also expressed the view that the application of the defendants on the 30th appeared to him to be a bona fide application and that ends of justice required that the defendants should have another opportunity of proving their case.
14. We must say with all respects that if the above case lays down that a Court is bound to record the evidence of a certain party if the witnesses are present in Court after it has definitely ordered the evidence of that party to be closed simply because the case has been postponed to a later date for arguments or judgment, we differ from the view taken. Taking this view would mean that a party can always set at nought the order closing the evidence if it can manage to produce himself or his witnesses on the next date which is likely to be fixed for arguments or judgment. It is in very rare cases that the court after closing the evidence hears arguments or delivers judgment on the same day. Generally, on the request of parties, arguments are heard on the next day or after a few days and the court also takes a few days to deliver the judgment. The contention of learned counsel for the appellants is that if during this period a party can produce the witnesses whose evidence has been refused by bringing them in court, the order of the court is ‘ipso facto’ cancelled by this action of the party. We are unable to accept this argument and he has not been able to produce any case in support except that of –‘Monilal Bandopadhya v. Khiroda Dasi (A)’. We have already said that of the two Judges, one was very doubtful of the view that the learned Chief Justice took in that case. He agreed with the order because he thought that the order of the Munsiff of the 30th December was wrong and it was in the interest of justice to remand the case.
15. We are, therefore, of opinion that merely because the plaintiff walked into the court on the 7th December and said that he might be examined, the court was not bound to set aside the considered orders passed on 4-5-1950 and then on 28-11-1950.
16. The plaintiff, therefore, fails on all the three points that have been raised on his behalf. It was urged finally that the case is worth Rs. 4,0007- or Rs. 5000/- and this Court might allow the plaintiff in the interest of justice to appear himself and be examined. It is now 12 years since this case has been going on. The plaintiff has been given opportunity after opportunity to give evidence but has more than once failed to take advantage of those opportunities. There must be a limit to the indulgence which the parties are entitled to in prosecution of their suit. The plaintiff has exceeded that limit and we are of opinion that no indulgence can now be allowed to the plaintiff in this case.
17. We, therefore, dismiss the appeal with costs
to defendant-respondent Manakchand who has
appeared to contest the appeal.