RSA No.3630 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3630 of 2007(O&M)
Date of decision: .2008
Pawan Kumar and others ......Appellants
Versus
Krishan Chand and others ......Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. P.S. Chauhan, Advocate for the appellants.
Rakesh Kumar Garg, J .
This is plaintiffs’ second appeal against the judgment and
decrees of the Courts below whereby their suit for possession of the land in
dispute and declaration that judgment and decree dated 20.1.1989 passed
in Civil Suit No.20/89 titled as Krishan Chand etc. v. Babu Ram and the
judgment and decree dated 10.9.1990 passed in Civil Suit No.1658 of 1990
titled as Krishan Chand etc. v. Babu Ram regarding the aforesaid land are
illegal and void, has been dismissed under Order 17 Rule 3 CPC for want
of evidence.
Briefly stated, one Rulia Ram son of Shanker was owner in
possession of the land in dispute and after his death, his three sons,
namely, Dhan Raj, Babu Ram and Ranjit inherited his estate. The
plaintiffs and defendant No.3 are the daughters of Dhan Raj whereas Babu
Ram and Ranjit were unmarried and issueless. Dhan Raj died on
21.10.1983 leaving behind the plaintiffs and defendant No.3 as his legal
heirs. Babu Ram uncle of the plaintiffs had got entered and sanctioned
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mutation No.1312 dated 28.3.1990 regarding the share of Ranjit in the
revenue record alleging that Ranjit was not heard for the last more than 53
years and he was the only legal heir whereas Dhan Raj brother of Ranjit
was alive at that time and the property of Ranjit would have devolved upon
Dhan Raj and Babu Ram in equal shares and, therefore, mutation No.1312
is illegal.
It is the further case of the plaintiffs that the suit for declaration
was filed by defendants No.1 and 2 against Babu Ram regarding the share
of Ranjit and collusive decree was passed on 10.9.1990 by the then Sub
Judge, Ambala. No family partition had taken place between defendants
No.1 and 2 and Babu Ram. Babu Ram was not competent to give whole
of the land owned by Ranjit Singh to defendants No.1 and 2, in the
presence of Dhan Raj, father of the plaintiffs. The aforesaid judgment and
decree dated 10.9.1990 passed in Civil Suit No.1658/90 was illegal and not
binding upon the rights of the plaintiff. Babu Ram had also suffered a
collusive decree regarding his share of his land in dispute in favour of
defendants No.1 and 2 on 20.1.1989 in the Court of Sh. A.K. Jain, Sub
Judge, Ambala in civil suit titled as Krishan Chander v. Babu Ram on the
basis of oral family settlement. In fact, no such family settlement had taken
place. The plaintiffs who are the daughters of Dhan Raj and being the
LRs of Babu Ram were also entitled to get share in the land of Babu Ram.
Thus, judgment and decree dated 20.1.1989 passed in Civil Suit No.20/89
titled as Krishan Chander v. Babu Ram was also illegal, null and void. The
land which was the subject matter of the aforesaid two decrees could not
be transferred by way of collusive decree as value of the land was more
than Rs.100 and the above said decrees were not got registered. Babu
Ram was not competent to transfer his share and the share of Ranjit Singh
to defendants No.1 and 2 by way of Civil Court decree ignoring the rights
RSA No.3630 of 2007(O&M) 3
of the plaintiffs and defendant No.3. Hence, this suit.
The suit was contested by the defendants and written
statement dated 8.12.1999 was filed by them admitting that Rulia Ram was
the owner of the property. It was pleaded that the plaintiffs have no right to
claim inheritance of Dhan Raj. It was also admitted that Ranjit Singh was
not heard for the last many years before the death of Rulia Ram. It was
also admitted that Babu Ram was unmarried and issueless. It was denied
that there was any illegality regarding the sanction of mutation No.1312
and passing of decrees dated 20.1.1989 and 10.9.1990. On the pleadings
of the parties, issues were framed by the trial Court vide order dated
3.2.2000. The evidence of the plaintiffs was closed by the trial Court vide
order dated 4.12.2006 under Order 17 Rule 3 CPC, which is reproduced
hereunder:
“No evidence of the plaintiff is present. Adjournment
sought by the plaintiffs without showing any plausible
cause. Today is the last opportunity for evidence of the
plaintiffs. Civil Procedure Code does not provide for
granting of opportunity merely on asking. It is required
to be given whenever it is beyond the control of the
party. Today’s adjournment has not been justified.
Request of ld. Counsel for the plaintiffs for adjourning
the case is declined. Evidence of the plaintiffs is
ordered to be closed under Section 17 Rule 3 CPC.
Closing of evidence of the plaintiffs means failure on
their part to prove their case in affirmative. No purpose
will be served to proceed ahead with the trial of the
case to record the evidence of the defendants because if
the evidence of the defendant is recorded it will not bring
RSA No.3630 of 2007(O&M) 4any improvement in the case of the defendants, rather it
will be futile exercise and wastage of the court time.
Hence, the evidence of the defendants is also closed.
Vide even date judgment, the suit of the plaintiffs has
been dismissed. Parties shall bear their own costs.
Decree sheet be prepared accordingly and file be
consigned to record room after due compliance.”
The suit of the plaintiffs was dismissed for lack of evidence
vide judgment and decree of the trial Court dated 4.12.2006.
Aggrieved against the aforesaid judgment and decree of the
trial Court, the plaintiff filed an appeal which was also dismissed vide
judgment and decree dated 12.2.2007 passed by the District Judge,
Panchkula.
Still not satisfied, the plaintiffs have filed the present appeal
against the impugned judgment and decrees of the Courts below.
Learned counsel for the appellants has vehemently argued
that the Courts below have erred while non-suiting the appellants on the
basis of order dated 4.12.2006 whereby evidence of the plaintiffs was
closed by order, as the said order has been passed by the trial Court
without affording full opportunity to produce the entire evidence in the case
of the appellants and the evidence of the plaintiffs was closed by order of
the Court hurriedly as even no last date was given to the plaintiffs.
Learned counsel has further argued that one PW who was present on
23.5.2003 tendered his affidavit in evidence but on request of the
defendants the cross-examination was deferred and the case was
adjourned to 16.1.2004. On that date or at a later date fixed, the
defendants never tried or requested for the cross-examination of the said
witness. Thus, no fault can be found with the plaintiff-appellants and it
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was the duty of the defendants to cross-examine the said witness.
Learned counsel for the appellant has prayed that since the provisions of
the Civil Procedure Code are handmade for the administration of justice
therefore, the appeal be allowed and judgment and decrees of the Courts
below be set aside and the appellants be given one more effective
opportunity to adduce evidence to prove their case.
I have heard learned counsel for the appellants and perused
the record.
A perusal of the record shows that issues were framed in this
case on 3.2.2000 and the evidence was closed vide order dated 4.12.2006.
Thus, the case remained pending for evidence of the appellants for more
than six years and during this period many opportunities were granted to
the plaintiff-appellants for adducing evidence out of which at least five
opportunities were effective yet the plaintiffs failed to adduce evidence.
The argument of the learned counsel for the appellants that the plaintiffs
were given effective opportunities to produce their entire evidence is not
tenable. From the zimni orders, it is also clear that PW-1 was not present
in Court on 16.1.2004 for his cross-examination. In fact, from the perusal of
all the zimni orders, it is crystal clear that PW-1 never came present in
Court for his cross-examination. The evidence was to be adduced by the
plaintiffs at their own risk and responsibility. It is not the case of the
appellants that for enforcing the presence of the witnesses they had
sought assistance of the Court and in spite of that the witnesses were not
present and therefore, they were not at fault.
Faced with this situation, the learned counsel has tried to
justify the case of the appellants by stating that Sh. Jagir Singh, learned
counsel appearing on behalf of the appellants had noted down a wrong
date for recording of the evidence of the plaintiffs and the said wrong date
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was informed by him to the plaintiffs and because of this reason the
plaintiffs were not able to produce their evidence on 4.12.2006 as they had
wrongly noted down the date as 20.12.2006 as was told to them by their
counsel. Thus, it was prayed that in the interest of justice, the order dated
4.12.2006 passed by the trial Court vide which evidence of the plaintiffs
was ordered to be closed under Order 17 Rule 3 CPC and the judgment
and decree passed by the trial Court dismissing the suit be set aside and
the case be remanded to the trial Court with a direction to afford at least
one opportunity to the plaintiffs to lead their evidence. In support of this
argument, the appellants have placed on record Annexure A-1 along with
C.M. No.10142-C of 2007 i.e. copy of brief envelop of counsel for the
plaintiffs before the trial Court to show that a wrong date was noted i.e.
20.12.2006 instead of 4.12.2006. (The contention of the counsel for the
appellants is not supported from the zimni orders passed by the trial Court
in the case). As per this brief, on 22.10.2006, the case was adjourned to
20.12.2006. However, this is not the case as per the zimni orders recorded
in the case by the trial Court. The case was never fixed for 22.10.2006 and
therefore, there was no occasion for the counsel for the plaintiffs to note
down a wrong date in the case as 20.12.2006. The zimni orders show that
the case was fixed on 12.10.2006 and 4.12.2006. Thus, the stand of the
appellants is falsified from the record. No doubt, the provisions of Civil
Procedure Code are hand made for the administration of justice. However,
no relief can be granted to the appellants as equity is not in their favour.
The plaintiffs cannot be allowed to take advantage of their own fault. The
plaintiff-appellants have failed to prove their case, in spite of the fact, that
case was adjourned from time to time to enable the appellants to adduce
evidence and in spite of that the plaintiff-appellants failed. Moreover, the
Lower Appellate Court has passed the impugned judgment and decree
RSA No.3630 of 2007(O&M) 7
after perusing the record. While dismissing the appeal, the Lower
Appellate Court observed as under:
“In this case in all five effective opportunities were
granted for the evidence of the plaintiffs and on
12.10.2006 last opportunity was granted to the plaintiffs
for their evidence for 4.12.2006. On 4.12.2006, Shri
D.P. Saini, learned counsel for the plaintiffs had
appeared before the trial Court. If, on 12.10.2006, he
had noted down the next date as 20.12.2006, he could
not have appeared in the trial Court on 4.12.2006.
Besides, there was nothing in the zimni order dated
4.12.2006 to show that on that date, it was submitted by
the learned counsel for the plaintiffs before the trial
Court that on the previous date i.e. 12.10.2006, he had
noted down the next date of hearing as 20.12.2006 and
because of this reason, the evidence of the plaintiffs
could not be produced on that date.”
Even the learned counsel for the appellants was unable to
point out any illegality or infirmity in the judgment and decree of the Lower
Appellate Court.
Thus, for the reasons recorded above, I find no merit in this
appeal. No substantial question of law arises.
Dismissed.
, 2008 (RAKESH KUMAR GARG)
ps JUDGE
RSA No.3630 of 2007(O&M) 8