IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3382 of 2009 Date of Decision : November 19, 2009 Jaspal Singh ....Appellant Versus Punjab State Electricity Board, The Mall, Patiala and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Ms. Sonia G.Singh, Advocate for the appellant. Mr. Sukhbir Singh Mattewal, Advocate for respondents No.1 to 3. Mr. Suresh Goel, Advocate for respondent No.4. T.P.S. MANN, J.(Oral) The plaintiff-appellant alongwith his father Joginder Singh filed a suit so as to restrain defendants-respondents No.1 to 3 from giving electricity connection to defendant-respondent No.4 from Bus Stand of village Kahneke as according to him the transformer was situated at a distance of 600 meters whereas no connection could be given from a distance of more than 500 meters. After the filing of the written statement, the issues were settled on 9.12.2006. The case was adjourned to 23.3.2007 for recording the evidence of the plaintiffs. However, on 23.3.2007, the case was received by transfer and after ordering its registration and R.S.A. No. 3382 of 2009 -2- observing that no PW was present, the learned trial Court directed that the PWs be produced on 28.10.2007. On 28.10.2007 it was Sunday and the following day, i.e., 29.10.2007 was observed as a holiday, accordingly, on 30.10.2007, the learned trial Court adjourned the case to 10.1.2008 for plaintiffs' evidence. On 10.1.2008 no PW was present and the case was adjourned to 29.3.2008. On the adjourned date also, no PW was present and the case was further adjourned for 3.4.2008. It was, however, made clear that it would be the last opportunity and the plaintiffs would also pay costs of Rs.200/-. Even on 3.4.2008, no PW was present nor costs paid. Under these circumstances, the learned trial Court proceeded under Order XVII Rule 3 C.P.C. to decide the suit itself. The plaintiffs then filed the first appeal, which was dismissed by the learned lower appellate Court on 8.9.2008. One of the plaintiffs is now before this Court by way of a second appeal filed under Section 100 C.P.C. Learned counsel for the appellant has submitted that though five opportunities had been granted in all to the plaintiffs to produce their evidence, yet two dates, i.e., 23.3.2007 and 30.10.2007 cannot be said to be the effective dates for recording the evidence of the plaintiffs. Only three effective opportunities were granted to the plaintiffs for examining their evidence, i.e., 10.1.2008, 29.3.2008 and 3.4.2008. However, due to inadvertence, the plaintiffs could not produce their evidence on 3.4.2008 nor could pay the costs imposed on 29.3.2008, although they had already deposited the diet money for the service of their witnesses. In such a R.S.A. No. 3382 of 2009 -3- situation, learned trial Court was required to give further opportunity to the plaintiffs to examine their evidence instead of proceeding with the suit under Order XVII Rule 3 of the Code. Learned counsel appearing for the respondents have argued in unison that sufficient opportunities had been granted to the plaintiffs to examine their evidence but despite the same they failed to examine any evidence, besides, having not deposited the costs imposed upon them on 29.3.2008 when one more opportunity by terming it as last opportunity was granted to them to examine their evidence. Therefore, no case was made out for grant of more time to the plaintiffs to examine their evidence. Though the case was taken up by the transferee Court on 23.3.2007 for recording of the plaintiffs' evidence for the first time but, as is clear from the order passed on the said date, no PW was present. Thereafter on 30.10.2007, the trial was simply adjourned to 10.1.2008 for plaintiffs' evidence. The plaintiffs were then granted three opportunities to examine their evidence, i.e, on 10.1.2008, 29.3.2008 and 3.4.2008 but on none of these dates they could produce any evidence. So much so, even the costs imposed upon them on 29.3.2008 were never deposited. It is, thus, apparent that the plaintiffs were granted four opportunities for examining their evidence. Order XVII Rule 1 of the Code, as amended by the Code of Civil Procedure(Amendment) Act, 1999, requires that during the trial of the suit, not more than three opportunities/adjournments are required to be granted to a party during hearing of the suit. In the present case, four R.S.A. No. 3382 of 2009 -4- opportunities out of which atleast three were effective opportunities, were granted to the plaintiffs but they did not examine their evidence. They also did not pay the costs of Rs.200/- imposed by the learned trial Court on 29.3.2008 when one last opportunity was granted to them for examining their evidence. Under these circumstances, the learned trial Court was justified in proceeding under Order XVII Rule 3 of the Code of Civil Procedure to decide the suit forthwith. As no evidence had been brought on the record by the plaintiffs, their pleadings remained unsubstantiated. No relief could be granted to them in the absence of there being any evidence on the record and, therefore, the learned trial Court rightly dismissed the suit. No ground for interference is made out. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) November 19, 2009 JUDGE ajay-1