RSA No.62 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.62 of 2006(O&M) Date of decision: 5.3.2010 Sohan Lal and others ......Appellant(s) Versus Maina Devi and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sandeep Jain, Advocate for the appellants. Ms. Teena Garg, Advocate for the respondents. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below, whereby their suit for permanent injunction restraining the defendant-respondents from forcibly dispossessing or interfering in their possession over the suit land was dismissed. Briefly stated, as per the averments, the suit land of the plaintiffs was in joint ownership with Ujagar Singh and others and no partition had ever taken place. They had constructed a Haveli at their own cost in Khasra No.98 measuring 1 kanal 7 marlas and were using the same to the exclusion of other co-sharers. Defendants were claiming that they had purchased a part of the suit land from the real uncle of the plaintiffs and were threatening to dispossess the plaintiffs forcibly and illegally. Hence this suit. Upon notice, the defendants filed written statement contesting and controverting the allegations. It was further submitted that the plaintiffs were not in possession of any part of the suit land and entire construction along with the land belongs to the defendants. The defendants had RSA No.62 of 2006(O&M) 2 purchased the suit land from Chain, who was owner in possession to the extent of 1/3 share and the plaintiffs had no concern with the same. On merits, the defendants denied the allegations of the plaint specifically. It was further alleged that the partition had already been effected. Dismissal of the suit was prayed for. It is relevant to point out here that evidence of the plaintiff- Sohan Lal was closed by order dated 3.5.2004 of the Court. The aforesaid order was not challenged by the appellants. Since the appellants failed to prove their case by adducing evidence before the trial Court, the suit was dismissed. Feeling aggrieved therefrom, the plaintiffs had filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 10.8.2005. Still not satisfied, the appellants have filed the present appeal challenging the impugned judgment and decrees . Learned counsel for the appellants has vehemently argued that evidence of plaintiff-appellant No.1 was closed by order dated 3.5.2004 of the trial Court and there was no justification for the same. The plaintiff-appellant was not afforded opportunity to lead his evidence and therefore, the present appeal was liable to be accepted and the judgment and decrees of the Courts below were liable to be set aside. Elaborating further his argument, learned counsel for the appellants has argued that the Courts below have failed to appreciate the fact that on 3.5.2004, appellant No.1 could not appear before the Court for his cross-examination due to his illness and therefore, the order closing the evidence was erroneous. As the absence of the appellant was not intentional and he was prevented by sufficient cause from appearing in the Court, the trial Court should have allowed one more opportunity to the appellants to lead their RSA No.62 of 2006(O&M) 3 evidence. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the appellants are entitled to relief claimed in the suit for permanent injunction? (ii) Whether the judgments and decrees passed by the learned Courts are sustainable in the eyes of law? (iii) Whether grave and manifest injustice has been done to the appellants?” On the other hand, learned counsel appearing on behalf of the respondents has supported the judgments of the Courts below by submitting that no fault can be found with the order dated 3.5.2004 of the trial Court whereby evidence of the appellants was closed by order of the Court as the appellants were given sufficient opportunities to lead their evidence but they did not appear to do so and even costs were not paid and the aforesaid order was never challenged by the appellants. I have heard learned counsel for the parties and perused the impugned judgment and decrees. While dismissing the appeal, the Lower Appellate Court found that the appellants were granted a large number of opportunities to lead/ produce their evidence but they did not lead any evidence, almost for five years after framing of issues. Affidavit of Sohan Lal was tendered on 2.3.2004 but his cross-examination was deferred for payment of costs as well as for cross-examination but thereafter neither costs were paid nor the plaintiffs turned up for cross-examination and thus, the evidence of the plaintiff was closed by order dated 3.5.2004. Thereafter the suit was dismissed. Even before the Lower Appellate Court while challenging the judgment and decree of the trial Court on the ground that evidence of the RSA No.62 of 2006(O&M) 4 appellants was closed by order of the Court illegally, no material was placed on record to justify the absence of the appellants before the Court offering themselves for cross-examination. So much so, even the contention as raised in the grounds of appeal before the Lower Appellate Court was not supported by any affidavit of the plaintiff-appellants. Thus, in the absence of any material before the Lower Appellate Court, it cannot be argued that the impugned judgment and decree passed by the Lower Appellate Court was not sustainable. Even before this Court, no material has been placed on record to show the bona fides of appellant No.1 for his absence on 3.5.2004 before the trial Court, which resulted into closing of evidence of the appellants by order of the Court and passing of impugned judgment and decree of the trial Court. No other point was urged. For the reasons recorded, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. March 5, 2010 (RAKESH KUMAR GARG) ps JUDGE