Regular Second Appeal No. 3123 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3123 of 2009 Date of decision : May 21, 2010 Gurvinder Singh ....Appellant versus Government of India and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. MS Rakkar, Senior Advocate with Mr. AGS Dhillon, Advocate, for the appellant Ms Sharmila Sharma, Advocate, for respondents no. 1 and 2 Mr. KS Chanan, Advocate, for respondent no. 3 Mr. Amit Jaiswal, Advocate, for respondent no. 4 L.N. Mittal, J. (Oral) Plaintiff Gurvinder Singh having remained unsuccessful in both the courts below has approached this Court by way of instant second appeal. In view of limited controversy involved in the appeal, I need not to go into facts of the case. Suffice to mention that the trial court granted three opportunities to the plaintiff for his evidence and since he failed to lead any evidence, plaintiff's evidence was closed by court order dated 2.5.2008 and since there was no evidence led by the plaintiff in support of his case, trial court vide judgment and decree of even date Regular Second Appeal No. 3123 of 2009 -2- (2.5.2008) dismissed plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 6.4.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that order dated 2.5.2008 closing evidence of the plaintiff by court order is very harsh resulting in dismissal of the plaintiff's suit. It is accordingly prayed that the plaintiff-appellant may be granted two more opportunities to lead his evidence at own responsibility on payment of costs. Learned counsel for the respondents, on the other hand contended that in view of proviso to Order 17 Rule 1 of the Code of Civil Procedure (in short, CPC), only three opportunities are required to be given to a party for adducing evidence and therefore, there is no illegality in the order of the trial court closing plaintiff's evidence by court order after granting three opportunities, consequently resulting in dismissal of the suit for want of any evidence. It was also contended that plaintiff-appellant did not assign any reason for not leading any evidence on the three dates of hearing for his evidence and therefore, further adjournment was not justified and was rightly declined by the trial court. Reliance in support of this contention has been placed on a judgment of Hon'ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu versus Union of India, 2005(3) Civil court Cases 420. Partricular reference has been made to paragraph 32 of the aforesaid judgment. Regular Second Appeal No. 3123 of 2009 -3- I have carefully considered the rival contentions and perused the case file including lower court file. Learned trial court incorrectly observed in paragraph 11 of the judgment that the plaintiff did not lead any evidence in spite of numerous opportunities beyond the statutory permissible provision. According to the statutory provision, i.e. proviso to Order 17 Rule 1 CPC, three opportunities are required to be given to a party for its evidence and the trial court also granted only three adjournments to the plaintiff for his evidence. So observation in paragraph 11 of the judgment by the trial court that the plaintiff was granted numerous opportunities beyond the statutory permissible provision is factually incorrect. After hearing learned counsel for the parties, I find that the following substantial question of law arises for determination in the instant second appeal :- “Whether judgments of the courts below non-suiting the plaintiff for want of evidence, because his evidence was closed by order of trial court by granting three opportunities only, are legally sustainable ?” It is correct that proviso to Order 17 Rule 1 CPC lays down that not more than three adjournments shall be granted to a party for its evidence. However, the said provision being rule of procedure has to be held to be directory and not mandatory. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaids of justice and are meant to advance the ends of justice and not to thwart or obstruct the same. Even the Hon'ble Supreme Court in paragraph 32 of the judgment in the case of Salem Advocate Bar Regular Second Appeal No. 3123 of 2009 -4- Association's case (supra) observed that in the facts and circumstances of a given case, more than three adjournments can be granted for evidence of a party by imposing punitive cost. I am of the considered opinion that in the instant case, closure of evidence of plaintiff by court order by granting three opportunities only has proved to be very harsh for the plaintiff resulting in dismissal of his suit. It has resulted in miscarriage of justice and has caused grave injustice to the plaintiff. In my considered opinion, the ends of justice would be met if the plaintiff is granted two more opportunities for his evidence at own responsibility on payment of heavy costs. The substantial question of law framed herein above is accordingly answered in favour of the plaintiff-appellant. Accordingly, the instant appeal is allowed and judgments and decrees of both the courts below are set aside and the suit is remanded to trial court for fresh decision in accordance with law. The trial court shall grant only two more opportunities to the plaintiff to lead evidence at his own responsibility subject to payment of Rs 5000/- as costs precedent. The plaintiff may seek assistance of the court to summon the evidence but not more that two opportunities shall be granted to the plaintiff even on ground of non service of any witness or non appearance of any witness in spite of service or on any other ground whatsoever. Of course, the defendants shall be granted reasonable opportunity of leading their evidence. Parties are directed to appear before the trial court on 22.7.2010. ( L.N. Mittal ) May 21, 2010 Judge 'dalbir' Regular Second Appeal No. 3123 of 2009 -5-