Punjab-Haryana High Court
Amit Lamba vs Sunder Lal & Anr on 9 September, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CR No.6040 of 2014 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.6040 of 2014 (O&M)
Date of Decision: 09.09.2014
Amit Lamba ..... Petitioner
Versus
Sunder Lal and another ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Suvir Sehgal, Advocate,
for the petitioner.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
In this order the parties are referred to by their original positions in the suit. Plaintiff has brought this revision against the order dated August 02, 2014 passed by the Civil Judge (Senior Division), Rohtak closing his remaining evidence by order.
The plaintiff has filed a suit for possession by way of specific performance of a contract of sale dated July 16, 2009 of a commercial property in Rohtak. The plaintiff is an NRI and lives and works for gain in the United Arab Emirates. Issues in the suit were framed on February 02, 2013. Plaintiff's first opportunity to lead evidence was available to him on March 13, 2013 but a request for adjournment was made. In the Court hearing on April 08, 2013 the learned counsel for the parties stated at the Bar that there are chances of the matter being compromised. The matter was adjourned for June 11, 2013 for aiding a compromise to settle the matter between the parties. However, June 11, 2013 was declared a holiday by this MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -2- Court and the case was taken up beforehand and adjourned suo motu to July 24, 2013. When this happened on June 01, 2013 learned counsel on either side for reasons obvious did not not know of it, neither were they required to be put to notice of court adjournment. On July 24, 2013 the Court was informed that the compromise could not be effected and parties sought time for consideration on the stay application on merits. Thus, the matter was adjourned for consideration on the stay application filed earlier under Order 39 Rules 1 & 2 of the Code of Civil Procedure by the plaintiff against further alienation of the property in dispute etc. Accordingly, the case was adjourned to the following day when a joint request was made for an adjournment for consideration on the stay application and the matter was posted for August 21, 2013. On August 21, 2013 the Presiding Officer was on leave and the matter was posted for August 27, 2013 for proper orders. An actual date was then fixed for September 26, 2013 for arguments on the stay application. On September 26, 2013 it is recorded in the zimni order that "Arguments not ready. Adjournment requested." The matter was thus posted for October 28, 2013 on the pending application and for the same purpose. On October 28, 2013 a peculiar order was passed by the trial Court which reads:-
"Arguments on stay application not advanced. On the request of counsel for both parties, the case is adjourned to 21.11.2013 for evidence of plaintiff. It will be the last opportunity."
It appears that both the parties were not prepared to advance arguments on the stay application on October 28, 2013 and instead had jointly requested for an adjournment which was accepted and granted for MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -3- November 21, 2013 but just for recording of the remaining evidence of the plaintiff but not for consideration on the pending application cremated rather unceremoniously and without much ado. It was further recorded on the order sheet and for the first time that it would be the last opportunity. Last opportunity here meant for production of evidence of the plaintiff. This order was repeated on November 21, 2013 and the case again posted for December 03, 2013. On the adjourned date, the plaintiff witness-1 was in attendance in court and his cross-examination was partly recorded but his further cross-examination was deferred as court time by then was over. This was the third effective opportunity hitherto fore given to the plaintiff to produce his evidence. The case was adjourned to January 15, 2014 for remaining cross-examination and remaining evidence of plaintiff. The last opportunity earlier given was ordered to stand. On January 15, 2014 two of the plaintiff's other witnesses were present and were examined. However, PW-1 was not cross-examined by the defendants. The case was adjourned to March 17, 2014 for the same purpose. It transpired that March 17, 2014 was declared a holiday and therefore the matter was taken up suo motu two days before the coming date and the case was adjourned to May 06, 2014 when neither of the parties was present. On May 06, 2014 the following order was passed:-
"Statement of PW Gagan Dua has been partly recorded. Further cross examination has been deferred. Today an application has been moved by the plaintiff seeking adjournment of the present case as plaintiff Amit Lamba is working at Ajman, U.A.E. and has not been able to come in the court on 6.5.2014 as he could not be got booked seat for Delhi and with these assertions request has been made for adjournment of the case after 10.6.2014. In view of the MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -4- request, the case is adjourned to 8.7.2014 for cross examination of PW1 and remaining evidence of plaintiff. Last opportunity shall stand. It is clarified that no further opportunity for plaintiffs evidence shall be granted and it shall be deemed to be closed."
One day before the date fixed, plaintiff made a written request for an adjournment duly presented before the Rohtak Court by counsel. The adjournment was sought on the ground that the plaintiff's passport had been retained in Case No.2992/2014, Ajman Penal Code with reference to his bail application in Ajman Court and since the passport has not been released till then, he was precluded from travelling to India to attend the Court proceedings. He requested that he may be allowed to remain absent from Court proceedings requesting that the case may be adjourned to a date after September 10, 2014 when he may be free to take a flight back to India. Together with his application, he attached a certificate issued by the Ministry of Justice, U.A.E. in its public Prosecution Department in a case under investigation for fraud. The passport was certified as retained by the authorities on April 09, 2014. The trial Judge took cognizance of the application and adjourned the case to August 02, 2014 a date well before the date requested in the application. There was no reason to disbelieve the predicament the plaintiff found himself in, while on the one hand by accepting the plea partially and disbelieving the rest. This was not quite a fair thing to do in the circumstances.
Aggrieved by fixing the next date of hearing on August 02, 2014 the plaintiff was apparently compelled to move another application requesting an adjournment in writing imploring that the plaintiff had made a request to the Ajman Court apprising it of his travel needs to India and the MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -5- Judge is averred to have said and assured in open Court that he would decide his case by September 10, 2014 since it was difficult for the Court to fix hearings on a daily basis due to the celebrations in the month of Ramadan observed from July 01, 2014 to August 03, 2014. In this background, a request was again made that a date be fixed after September 11, 2014. On August 02, 2014 the Civil Judge (Senior Division), Rohtak chose to abruptly close the evidence of the plaintiff by court order. This is where we stand.
Mr. Sehgal appearing for the petitioner submits that there are factual inaccuracies in the impugned order with reference to observations made therein that seven effective opportunities including five last opportunities were granted and no concrete proof was shown by way of any document issued by the Ajman Court to establish that the passport is still lying in the custody of the foreign Court. This was expecting too much from any court of law to write a prediction when the case would end. The hinderance in travel was not the passport but the police investigation over which the plaintiff could have no control since he was involved.
This Court has read the impugned order twice over and compared it with the zimni orders produced on the file with the assistance of Mr. Sehgal and his contentions on the nature and content of the in-between zimni orders and the impugned order taking the court back and forth to appreciate his submissions and press his point of view. In the present case, from a cumulative reading of the order sheet it cannot be said that there has been lack of due diligence or perseverance of the plaintiff in prosecuting the suit or in producing remaining witnesses. For some time, the case remained MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -6- in compromise mode. Then it remained for consideration on an application under Order 39 Rules 1 & 2 of the CPC where plaintiff alone was not at fault of delaying the proceedings and the blame has to be shared squarely by the defendants as well in delaying arguing the interlocutory application and in cross-examining the witnesses produced.
This is not a case where closing down the evidence of plaintiff abruptly by order was the only option left for the court to do. In a sale agreement which is sought to be specifically enforced and in the alternative for decree of recovery of Rs.76.65 lacs paid as earnest money for purchase of a commercial shop against a receipt dated April 03, 2010 the plaintiff was greatly to lose, the defendants/vendors winning by default. The balance amount to be paid according to the plaintiff is only Rs.65,000/- where the total sale consideration agreed upon was Rs.77.30 lacs for conveyance of the suit property. The trial Judge should have seen the total picture and balanced out the equities and to have judicially weighed all the pros and cons before taking the final step in closing remaining evidence. The conduct of the plaintiff did not justify such a harsh order visiting him with adverse civil consequences. This Court is of opinion that the impugned order is not legally sustainable and deserves to be reversed on the revision side as one which is entirely perverse.
Consequently, this petition is accepted and the impugned order dated August 02, 2014 passed by the Civil Judge (Senior Division), Rohtak is set aside.
The Court a quo is directed to post the matter in October 2014 for the plaintiff to appear as his own witness and for PW Gagan Dua to be MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh CR No.6040 of 2014 (O&M) -7- summoned to face his cross-examination by the defendants on a date fixed for the purpose after hearing both counsel on a date convenient to the parties and according to the availability of the plaintiff and has the freedom of travel to India. There was no reason to disbelieve the plaintiff of his inability to travel to India because of a fraud investigation against him in a foreign country of which sufficient evidence was placed by way of a certificate of the Ministry of Justice, U.A.E. The plaintiff cannot be seen as delaying and prolonging his own suit in a matter where such large amount of money transaction has passed hands to the vendor/defendants in buying and selling substantial property. It would appear to be a travesty of justice if the remaining evidence of the plaintiff is so abruptly cut short by court pressing the ctrl+alt+del buttons all at once, on one fine day, as was done. Justice could easily have been handed down at the trial court level I daresay by simply adjourning the case beyond September 11, 2014 on August 02, 2014 without much brouhaha. This has caused a terrible loss of judicial time of two courts. In hindsight I would say this has been without any redemption except for the cause of justice which alone is precious enough to do, to undo a wrong. The learned trial court sitting in senior division ought to have kept a little more alive and sensitive in the matter while dealing with the conduct of a party, which has truly speaking nothing to do with law. The greater the discretionary power possessed by court, the more sublime should be its use.
(RAJIV NARAIN RAINA) 09.09.2014 JUDGE manju MANJU 2014.09.22 10:18 I attest to the accuracy and authenticity of this document Chandigarh