R. S. A. No. 3772 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3772 of 2008 Date of Decision : August 10, 2010 Jagsir Singh .... Appellant Vs. Arjan Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. D.K. Kaushal, Advocate for the appellant. Mr. C. S. Jattana, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendant Jagsir Singh has filed the instant second appeal having remained unsuccessful in both the courts below. Respondent-plaintiff Arjan Singh filed suit against defendant- appellant for recovery of Rs.1,02,272/- alleging that defendant borrowed Rs.75,000/- from the plaintiff on 12.06.2003 and agreed to repay the same with interest @ 2% per month and executed pronote and receipt, but the defendant failed to repay the loan and interest amount. The defendant denied the plaint allegations and pleaded that R. S. A. No. 3772 of 2008 2 pronote and receipt are forged and fabricated documents. Learned Additional Civil Judge (Senior Division), Phul, vide judgment and decree dated 20.02.2008, decreed the plaintiff's suit for recovery of Rs.75,200/- with interest thereon @ 8% per annum from the date of pronote and receipt till filing of suit and thereafter @ 6% per annum till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Bathinda, vide judgment and decree dated 04.06.2008. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Perusal of the trial court file reveals that the defendant appeared in the witness box as his won witness and he tendered his affidavit of examination-in-chief. His cross-examination was deferred on the request of counsel for the plaintiff being unwell. On the next date of hearing, the defendant was present, but he requested for adjournment as his counsel had gone to America. Thereafter, two more opportunities were also granted, but since the defendant failed to appear in the witness-box for cross- examination and also failed to produce other evidence, evidence of the defendant was closed by court order and the suit was disposed of. The defendant had also availed of one more opportunity for his evidence before he stepped into the witness box for his examination-in-chief. Thus, in all, five effective opportunities including the one, on which counsel for the R. S. A. No. 3772 of 2008 3 plaintiff requested for adjournment for cross-examination of the defendant, were granted to defendant for his evidence. Learned counsel for the defendant-appellant contended that the defendant-appellant was not afforded reasonable opportunity for leading evidence and the suit be remanded for fresh decision after granting one more opportunity to the defendant for leading his evidence at his own responsibility. The prayer has been opposed by counsel for the plaintiff. I have carefully considered the rival contentions and perused the records. As noticed herein above, the defendant was granted five opportunities in all for his evidence, but on one date of hearing, he was present and his examination-in-chief was recorded, but his cross- examination was deferred on the request of counsel for the plaintiff being unwell. Thereafter, the defendant did not lead any evidence and his evidence was closed by court order. Closing of evidence of defendant- appellant by court order by the trial court has proved very harsh for the defendant. It may be said that there were four effective opportunities in all because out of five opportunities, on one date of hearing, counsel for the plaintiff himself sought adjournment. It is correct that according to proviso to Order 17 Rule 1 of the Code of Civil Procedure (in short – CPC), only three opportunities are required to be granted to a party for its evidence. However, the said provision being rule of procedure is directory and not mandatory. Rules of procedure are meant to advance the cause of justice R. S. A. No. 3772 of 2008 4 and not to thwart the same. Closing of evidence of a party by court order results in very serious and harsh consequences. Keeping in view all the circumstances of the instant case, I am of the considered opinion that ends of justice require that defendant- appellant should be granted one more opportunity for his evidence on payment of cost. For the reasons recorded herein above, the instant second appeal is allowed and judgments and decrees of the courts below are set aside and the suit is remanded to trial court for fresh decision in accordance with law after granting only one more opportunity to the defendant- appellant for his evidence at own responsibility, subject to payment of Rs.3,000/- as cost precedent. Defendant-appellant may take assistance of the Court to summon evidence, but not more than one opportunity shall be granted to the defendant, even on the ground of non-service of any witness or non-appearance of any witness in spite of service or on any other ground, whatsoever. The plaintiff may be granted reasonable opportunity to lead evidence in rebuttal, if so permissible under law. Parties are directed to appear before the trial court on 08.09.2010. Records of the courts below be sent back at once. August 10, 2010 ( L. N. MITTAL ) monika JUDGE