S.A.O. No. 24 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH S.A.O. No. 24 of 2011 (O&M) Date of decision : May 09, 2011 Paramjit Kaur ....Appellant versus Jaspal Kaur ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. M.S.Joshi, Advocate, for the appellant L.N. Mittal, J. (Oral) CM NO. 12215.CII of 2011 Allowed as prayed for. SAO No. 24 of 2011 Defendant Paramjit Kaur has filed the instant second appeal against order. Respondent-plaintiff Jaspal Kaur filed suit against appellant- defendant. Learned Civil Judge (Junior Division), Patiala vide judgment and decree dated 17.12.2009 dismissed the plaintiff's suit as there was no evidence by the plaintiff. In fact, plaintiff had examined two witnesses in support of her evidence. Their examination-in-chief by way of affidavits was recorded and their cross-examination was deferred on the request of S.A.O. No. 24 of 2011 (O&M) -2- counsel for the defendant himself. It appears that ultimately when the suit was fixed for 17.12.2009, the said witnesses did not appear and evidence of the plaintiff was closed by court order and the suit was dismissed on the same day. However, from the judgment of the lower appellate court it transpires that immediately thereafter on the same day, i.e. on 17.12.2009, on application moved by the plaintiff, the file was taken up again by the trial court for recording presence of the aforesaid two witnesses whose examination-in-chief had already been recorded and for recording their further statements. However, since the suit had already been dismissed, this application moved by the plaintiff was also declined by the trial court. Learned Additional District Judge, Patiala vide judgment dated 13.4.2011 has remanded the suit to the trial court for fresh decision in accordance with law after granting one effective opportunity to the plaintiff to conclude her evidence on payment of Rs 5000/- as costs precedent and after affording due opportunity to the defendant to lead her evidence. Feeling aggrieved, the defendant has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the suit remained pending in the trial court for five years for evidence of the plaintiff but she failed to conclude her evidence and therefore, her evidence was rightly closed by the order of the trial court. The contention apparently attractive cannot be accepted because during the pendency of the suit for plaintiff's evidence, some miscellaneous applications had been moved, S.A.O. No. 24 of 2011 (O&M) -3- disposal whereof took time. Learned counsel for the appellant himself states that in all four effective opportunities were granted to the plaintiff- respondent for her evidence by the trial court. Keeping in view the same, if one more opportunity has been ordered to be granted to the plaintiff for her evidence, by impugned judgment of the appellate court, the same cannot be said to be illegal. Courts always lean in favour of decision of a lis on merits. In the instant case, the plaintiff was non-suited by the trial court on the basis of no evidence. It would always be in the interest of justice if the lis is decided on the merits after opportunity of leading evidence given to both the parties. In the instant case the entire fault cannot be said to be of the plaintiff because as already noticed hereinbefore, the plaintiff produced her two witnesses who tendered their affidavits as examination-in-chief but their cross-examination was deferred on the request of counsel for the defendant himself. Keeping in view all the circumstances including the fact that even on 17.12.2009 when the suit was dismissed, plaintiff's aforesaid two witnesses were also said to be present, I do not find any infirmity much less illegality in the impugned judgment of the lower appellate court thereby granting one more opportunity to the plaintiff to lead her evidence. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L.N. Mittal ) May 09, 2011 Judge 'dalbir'