Delhi High Court
Malhan Builders And Ors. vs Durkhanie Jadran And Ors. on 28 August, 2006
Author: T.S. Thakur
Bench: T.S. Thakur, S.L. Bhayana
JUDGMENT T.S. Thakur, J.
1. This Regular First Appeal arises out of a judgment and decree passed by the Additional District Judge, Delhi, whereby the suit filed by the appellant for a permanent prohibitory injunction has been dismissed.
2. The suit property comprises a residential building bearing No. S-82, Greater Kailash Part-I, New Delhi. The plaintiffs' case, as set out in the plaint, is that the entire first floor and the front portion of the ground floor of the said building is in their peaceful occupation. The plaint sets out the background in which the said property was acquired by the plaintiffs from the owners thereof and relies upon the document of title allegedly executed in their favor.
3. A complete factual narrative and the manner in which the plaintiffs claim to have come in possession of the suit property is, in our opinion, unnecessary for the present, keeping in view the order that we propose to make in this appeal. Suffice it to say that the plaintiffs' claim to be the owners in occupation of first floor of the property and a part of the ground floor as indicated earlier. Their further case is that the defendants are adopting fraudulent, unlawful and criminal methods including forging title deeds qua the property and are trespassing upon the property with a view to illegally dispossessing the plaintiffs from the same. The plaintiffs further allege that the defendants are trying to sell the property in question by fraudulent means to innocent third parties even when they have no salable right, title or interest in the same. The suit for injunction filed by the plaintiff-appellant in that backdrop prayed for a decree to prevent any such mischief. It sought an injunction restraining the defendants from claiming themselves to be the owners of the suit property or disturbing the possession of the plaintiffs over the same. It also prayed for an injunction directing the respondents not to sell, transfer, alienate or encumber or part with the possession of any part of the property in dispute.
4. In the written statement filed by the defendants, the allegations made by the plaintiffs were stoutly denied. It was alleged that although the defendants, who happen to be Afghan refugees were initially inducted as tenants in the property in the year 1984 by Smt. Vidyawati Bhatia, the owner/landlady, yet the property was subsequently sold by said Smt.Bhatia in favor of defendant No. 3, Sh.Yama Jadran in terms of a registered sale deed dated 19th February, 1990 for a consideration of Rs.18 lacs. The sale made by Smt.Bhatia, during her lifetime was, according to the defendants, legally non-est as the vendor had no saleable interest in the suit property. To cut the long story short, the defendants claim to be the absolute owner in peaceful possession of the entire property situated at S-82, Greater Kailash, New Delhi, except for one Asha Singh, tenant in the servants quarter in the ground floor of the said property. The allegations that the plaintiffs are in possession have been thus denied emphatically. It was further alleged that the plaintiffs had filed false criminal cases against the defendants despite which the plaintiffs continued to be in occupation till 6/7th February, 2003, when Sh.Rajeev Suri, the attorney of the plaintiffs, who, according to the defendants, is a known land grabber broke upon the door forcefully, entered into the first floor of the suit property with the help of local criminals and the S.H.O., Police Station Greater Kailash-I, New Delhi. A complaint regarding the said incident has, according to the respondent, been filed before the Assistant Commissioner of Police and is being investigated by the Vigilance Department. The defendants, with those allegations, prayed for dismissal of the suit filed by the plaintiffs.
5. On the pleadings of the parties, the trial court framed six issues and directed the plaintiffs to commence evidence. The plaintiffs had, in proof of the issues, the onus whereof was placed upon them, filed the affidavit of Sh.Rajiv Suri. Since the plaintiffs did not appear for cross-examination on 13th April, 2005, the evidence of the plaintiffs was closed and the case fixed for the evidence of the defendants. The case was adjourned to 3rd May, 2005 for evidence of the defendants. On 3rd May, 2005, a statement was made on behalf of the defendants that they did not wish to lead any evidence in the matter. The case was then adjourned to 7th May, 2005 for the parties to file their written submissions. A revision petition was, in the meantime, filed against order dated 13th April, 2005, closing the evidence of the plaintiffs. On 7th May, 2005, the case was adjourned to 13th May, 2005 for filing of written submissions and eventually to 18th May, 2005, when the suit was dismissed. It is common ground that after the dismissal of the suit the revision petition pending in this Court was also dismissed as infructuous. The present appeal, filed by the plaintiff, assails the correctness of the judgment and decree, as already noticed earlier.
6. Appearing for the appellant, Mr.S.K.Puri, strenuously argued that the trial court was not justified in dismissing the suit on merits. He contended that in a case where the plaintiff had not led any evidence, the suit could, at best, be dismissed for non-prosecution and not on merits as has been done in the present case. Reliance was in support of that submission placed upon the provisions of Order XVII Rule 2 of the CPC. It was submitted that the court could proceed to decide the suit on merits only in cases where the evidence or a substantial portion of the evidence had already been recorded on behalf of the party, who failed to appear on any date to which the hearing of the suit was adjourned. Reliance was placed by the learned Counsel upon Saleh Bin Omer v. Vijayachand ; Kanaran v. Ramunni Nambiar and Ors. ; Shoba Rani Sharma v. Dhiraj Finance & C.F. (P) Ltd. ; Basalingappa v. Shidramappa ; M. Agaiah v. Mohd. Abdul Kereem and Mohandas and Ors. v. Ghisia Bai and Ors. AIR 2002 SC 2436.
7. Order XVII of the Code of Civil Procedure regulates adjournments. While Rule 1 of the said Order empowers the court to grant time and adjourn hearings on payment of costs etc., Rule 2 prescribes the procedure to be followed if the parties fail to appear on the date fixed. Since the entire argument advanced on behalf of the appellants rests on a true and correct interpretation of Rules 2 and 3 of Order XVII, it will be useful to extract the said two provisions for ready reference. It reads:
2. Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
[Explanation.-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.]
3. Court may proceed notwithstanding either party fails to produce evidence, etc.-Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent, proceed under Rule 2].
8. A plain reading of the above would show that the Rule applies only in cases where the parties or anyone of them fail to appear on a date to which the hearing of the suit has been adjourned. It is only non-appearance of a party that gives jurisdiction to the court under Rule 2 (supra) to dispose of the suit in one of the modes permissible under Order IX or to make such other order as it thinks fit. Order IX of the Code, on the other hand, regulates appearance of parties and consequences of non-appearance. Rule 3 of Order IX of CPC provides that if neither party appears when the suit is called for hearing, the Court may dismiss the suit, in which event, subject to the law of limitation, the plaintiff may bring a fresh suit or may apply to the court for setting aside the dismissal as provided for under Rule 4. Similarly, Rule 8 of Order IX provides that where the defendant appears but the plaintiff does not appear when the suit was called for hearing, the court shall make the order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court may pass a decree against the defendants upon such admission. What is significant is that if a suit is dismissed under Order IX Rule 8 then unlike a suit dismissed under Order VIII Rule 3 a fresh suit by the plaintiff is barred on the same cause of action although he may apply to have the dismissal set aside if he satisfies the court that there was sufficient cause for his non-appearance. It follows that on the language employed in Order IX a dismissal of the suit is permissible only in cases where the parties or anyone of them fail to appear. That is true even about Order XVII Rule 2 of the CPC. The only exception, which the court may make under Order XVII Rule 2 is, in cases where the evidence or a substantial portion of the evidence of the party, who is absent on the date of hearing has been recorded, in which event, the court may instead of dismissing the suit for default as a whole proceed with the case as if such party was present. That exception, however, has no application in cases where the basic requirement of absence of all or one of them is not satisfied.
9. We may at this stage also refer to Rule 3 of Order XVII which deals with situations where a party to a suit, to whom time has been granted, fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary for the further progress of the suit. In the event of any such default, the Rule provides for two different approaches to be adopted depending upon whether the parties are present or absent. If the parties are present, the court can proceed to decide the suit forthwith but if the parties or anyone of them is absent the court can only resort to Order XVII Rule 2 CPC, which, as noticed earlier, deals with situations where the parties or anyone of them is absent. A conjoint reading of the two Rules, therefore, leaves no manner of doubt that the consequences flowing from the non-appearance of the parties are different from those flowing from defaults committed by the parties, who are present at the hearing.
10. In the instant case, the parties were present through their authorised agents on all relevant dates of hearing including the date when the evidence of the plaintiff was closed. They were also present on the date when the matter was reserved for orders and the judgment eventually pronounced. It is not, therefore, a case whether Order XVII Rule 2 CPC could be invoked by the court as argued by learned Counsel for the appellants. It was clearly a case where the plaintiffs had failed to adduce his evidence and committed a default warranting action in terms of Order XVII Rule 3 which, as noticed earlier, permitted the court to proceed to decide the suit forthwith. Any such decision was bound to be a decision on the merits of the issues that were framed and not just an order of dismissal for default as suggested by the learned Counsel.
11. The argument that the plaintiffs ought to be treated as absent within the meaning of Order XVII Rule 2 even when their counsel was present has not impressed us. A plain reading of Order III Rule 1 of the CPC belies that submission. Any appearance required or authorised by law, in terms of the said provision, has to be made or done by the party in person, or by his recognised agent or by a pleader. For purposes of Order XVII if the counsel was present on behalf of the plaintiffs, the plaintiffs shall be treated to have also been present. It is a different matter that in the circumstances of the present case the plaintiffs, even when present, had failed to produce their evidence, which was in the form of production of the attorney of the plaintiffs for purposes of cross-examination. There was, therefore, a default but that default cannot be confused with appearance of the plaintiffs.
12. The decisions relied upon by learned Counsel for the plaintiffs do not lend any support to him in so far as the interpretation of Order XVII Rules 2 & 3 is concerned. The decisions in Saleh Bin Omer v. Vijayachand & Kanaran v. Ramunni Nambiar and Ors. and examined the question whether hearing of the suit includes both production of evidence as well as arguments and answered the same in the affirmative. Similarly, the decision in Subha Rani Sharma's case (supra) does not have any application to the case at hand in as much as the court has not interpreted Order XVII Rules 2 & 3 in the context of the fact situation which arises for consideration before us. In Basalingappa's case (supra), the court simply held that in cases where the plaintiff not only commits a default in adducing evidence but also fails to appear, the proper procedure to follow would be that as laid down in Rule 2 of Order XVII. That decision does not lay down the proposition that even when the parties are present, the court can resort to Order XVII Rule 2 of the CPC. That is true even about the decision in M. Agaiah v. Mohd. Abdul Kereem .
13. In Mohandas and Ors. v. Ghisia Bai and Ors. AIR 2002 SC 2436, neither the plaintiff nor his witnesses were present on the date when the suit was dismissed. The court, therefore, held that the provision applicable to such a situation was Order XVII Rule 2 of the CPC. The court observed:
In the present case what we find is neither the plaintiff-appellant nor his witnesses were present on 7th May, 1994. Therefore, the case has to be dismissed under Order XVII Rule 2. Even Rule 3 itself provides that if the parties or any of them absent, the Court shall proceed to decide the suit under Order XVII, Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We, therefore, set aside the judgment under appeal and sent the case back to the trial Court to decide the matter in accordance with law.
14. That is not the position in the instant case. In the present case, both the parties were present as they were both represented by their counsel, which tantamounts to their being present for purposes of Order XVII Rule 2. The said provision could not, therefore, have been invoked. The trial court was, in that view, justified in proceeding to decide the suit after the defendants had closed their evidence.
15. We may before parting with this aspect refer to Prakash Chander v. Janki Manchanda . Their Lordships have in that case interpreted Order XVII Rules 2 & 3 and summed up the law on the subject thus:
It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2. It is therefore clear that in absence of the defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined up to that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9, Civil P.C. It is therefore clear that after this amendment in Order17 Rule 2 and 3, Civil P.C. there remains no doubt and therefore there is no possibility of any controversy.
16. Reference may also be made to the decision of the Supreme Court in B. Janakiramaiah Chetty v. A.K. Parthasarthi , where the Court once again examined the provisions of Order XVII Rules 2 & 3 and observed:
In Rule 2, the expression used is "make such order as it thinks fit", as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2 and 3, operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.
17. The above makes the position amply clear that Order XVII Rule 2 applies only when the parties or any one of them are absent. It does not apply when the party is present but has committed a default in which event the proper course is to invoke Order XVII Rule 3 and pass orders depending upon whether the defaulting party is present or absent.
18. Mr. Puri next argued that the trial court was not justified in closing the evidence of the plaintiffs and that the order doing so was harsh, resulting in miscarriage of justice.
19. On behalf of the respondents, it was, on the other hand, contended that the interim orders passed by the trial court had merged in the final decree and could not, therefore, be assailed in the present appeal. It was also submitted that the order closing the evidence of the plaintiffs was justified in the facts and circumstances of the case.
20. Before we turn to the question whether the order closing the evidence was or was not justified, we may straightway examine the contention urged on behalf of the respondents that the correctness of an interim order passed in the course of a trial cannot be questioned in an appeal against the final judgment. There is, in our opinion, no juristic basis for that contention. All the interim orders that the trial court may make in a prolonged trial need not necessarily affect the validity of the final judgment made by the court and yet there may be orders that seriously jeopardise the soundness of a verdict even when the orders were introductory in nature. Hasty and unwarranted closure of evidence of a party may have serious consequences for the affected party in as much as it would deprive the party a fair opportunity to prove his case. There is no gainsaying that any final judgment or decree which is not founded on a fair trial in which a reasonable opportunity is given to both the parties to prove their cases would be unsustainable in the eye of law. Just as a judgment and decree delivered without affording to the parties an opportunity to lead evidence is bad so also a judgment and decree delivered by prematurely closing the evidence of the party concerned would be legally infirm. In an appeal against any such final judgment and decree, therefore, the fairness of the procedure followed by the trial court or matters relating to fairness of the opportunity given to a party would be open to examination by the appellate court. So also if the interim orders passed have merged in the final judgment and decree a challenge to the final judgment and decree in an appeal must necessarily include a challenge to the correctness of such orders that have so merged.
21. That brings us to the question whether the closure of evidence of the plaintiff was, in the circumstances of the case, justified. As mentioned earlier, after the issues were framed by the trial court on 31st July, 2003, the case was posted for the evidence of the plaintiffs but before the evidence could start an application under Order I Rule 10 was filed for addition of one Paramjit Singh as a party defendant. The case was adjourned from time to time for hearing on the said application till 7th January, 2004 when the said application was eventually dismissed. The suit was then once again posted for the plaintiffs' evidence on 1st April, 2004 with a direction that the affidavit of the plaintiffs' witness may be filed in advance with a copy to the counsel opposite for his cross-examination. The affidavit of the attorney of the plaintiffs was then filed on 16th August, 2004 on which date even the witness was present for cross-examination but the case was adjourned at the request of proxy counsel for the defendant. A final opportunity was given to the counsel for the defendant to cross-examine the witness on 13th September, 2006. On 13th September, 2004 again the witness was present but the suit was adjourned at the request of counsel for the defendant on payment of costs of Rs.700/-. The witness was again present on 11th October, 2004 when the counsel for the defendant did not appear and the defendants were proceeded ex-parte and the case adjourned for ex-parte arguments. Ex-parte proceedings were, however, set aside on 23rd November, 2004 on payment of costs of Rs.500/- with a direction that in case the witness is not cross-examined on the next date of hearing, i.e., on 10th January, 2005, the right of cross-examination shall stand forfeited. On 10th January, 2005, the witness could not appear as his son was reported to be in hospital. The case was thereafter adjourned to 13th April, 2005 when it was reported that the mother of the witness was admitted to the hospital. The court, however, closed the evidence on that date.
22. Having regard to the totality of these circumstances and the fact that the witness had remained present on three earlier occasions for cross-examination and the defendant had been avoiding to cross-examine him, closure of evidence of the plaintiff was not justified. The order was harsh and did result in miscarriage of justice. The court below could at best have imposed costs on the plaintiffs, while adjourning the matter for production of the witness for cross-examination. It, on the contrary, proceeded to dismiss the suit on merits without ensuring that the plaintiffs had a reasonable opportunity to prove their case. The hasty closure of the evidence consequently affected the validity of the final judgment and decree passed by the court below.
23. In the result, this appeal succeeds and is hereby allowed, the impugned judgment and decree is set aside and the suit remanded back to the trial court for a fresh disposal in accordance with law. We further direct that the plaintiff shall cause appearance of their witness, Sh. Rajeev Suri for cross-examination on a date which the trial court shall now fix for that purpose, subject to payment of costs of Rs.5,000/- to the defendants. The costs shall be deposited by the plaintiffs before the trial court.
24. Parties to appear before the trial court on 4th October, 2006 for directions. The record of the trial court shall be sent back forthwith.