IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.367 of 1986 DATE OF DECISION : 07.10.2010. Gurmej Singh ...Appellant Vs. Gurdev Singh ...Respondent CORAM: HON’BLE MR.JUSTICE VINOD K.SHARMA Present : Mr.I.K.Mehta, Senior Advocate with Mr.M.S.Kohli, Advocate for the appellant None for the respondents. -- VINOD K.SHARMA,J (ORAL) This is plaintiff appellants’ Regular Second Appeal against the judgment and decree passed by learned lower courts below vide which suit filed by the plaintiff appellant was ordered to be dismissed. The plaintiff appellant filed a suit for declaration, that the sale deed to executed and registered on 20.05.1980 by defendant No.1 Hardev Singh alias Harpal Singh in favour of Smt.Gurmit Kaur defendant no.2 of land measuring 8 Kanals 8 Marlas, being 1/9th share of total land measuring 75 Kanals 12 Marlas, bearing Khasra Nos. 66/26, 0-5 Khewat/Khatauni No.423/647, Khasra No. 66/21, 0-8 Khewat/Khatauni No.423/649, Khasra nos. 404 min, 1-0 Khewat/Khatauni No. 423/448, Khasra Nos. 404 min, 2-0 Khewat/Khatauni no. 423/650, Khasra No. 404 min, 1-0 Khewat/Khatauni No. 423/651 Khasra Nos. ________6____________, 14, 17, 18, 19 8-0 8-0 8-0 8-0 RSA NO.367 OF 1986 -2- Khewat/Khatauni No. 424/652, Khasra No. ___________66_________ 23, 24, 82/2, 82/4, 8-0 8-0 7-7 8-0 Khewat/khatauni No. 428/659, situated in the area of village Balachaur, HB No. 312, Tehsil Jagadhari vide Fard Jamabandi 1978-79 described in the sale deed, and Mutation sanctioned thereon on the SHAM transaction was without consideration, null and void and not binding on the rights of the plaintiff being in excess of the share of the defendant no.1. Consequently relief for permanent injunction was also sought restraining the defendant from interfering or otherwise alienating or causing to file any application for partition of land in respect of which he has no concern in any manner and also from peaceful and proprietory possession of the plaintiffs over the land in suit bearing Khasra No.66/21 as detailed above. The suit was contested, and the learned trial Court framed issue on 25.07.1981. The plaintiff appellant failed to lead evidence in spite of availing number of opportunities. Thereafter on 27.09.1984 the counsel for the plaintiff/appellant pleaded no instructions. In view of the statement of the counsel, pleading instruction on the date fixed for evidence of the plaintiff appellant, the learned trial Court dismissed the suit on 27.09.1984 by passing the following orders:- “The ld. Counsel for the plaintiff has stated at the bar that plaintiff was not present nor any PW is present nor any was summoned. He has also stated that he has no instructions from his client. The case was fied for PWs. It has already gone more than 3½ years old. Issues were framed on 25.7.81. The case is hanging for evidence of the plaintiff for the last more than three years. The plaintiff took no interest to produce his evidence in spite of several adjournment. As no PW is present nor any was summoned nor the plaintiff has produced any evidence in support of his case, nor plaintiff’s counsel has any instructions from RSA NO.367 OF 1986(O&M) -3- his client, so I have no option left but to dismiss the suit in default/non-prosecution for want of evidence. I order accordingly. No order as to costs.” The plaintiff appellant preferred appeal against the order referred to above. The learned appellate Court agreed with the finding recorded by the learned trial Court holding the plaintiff appellant to be negligent, in prosecuting the case and upheld the order passed by Learned trial Court and dismissed the appeal. Learned Senior counsel for the appellant contended that this appeal raises the following substantial question of law:- “Whether the orders passed by the learned trial Court in dismissing the suit for non-prosecution in errors being outcome of misreading of record of the case in exceeding the previous order passed by the court in summoning of the PWs.” Learned Senior Counsel for the plaintiff appellant, on the substantial question of law referred to above, contended that the order passed by the learned trial Court, as also the judgment and decree of the learned lower Appellate Court is perverse, in as much as the Learned courts failed to take note of the fact, that the plaintiff had been prosecuting the case diligently and had summoned the witness on the previous dates. Merely because the plaintiff appellant was absent on one date of hearing, the Learned Court was not justified, in invoking the provisions of Order 17 Rule 3, of the Code of Civil Procedure to dismiss the suit. The learned Senior Counsel, referred to the orders passed by the learned trial Court prior to the passing of the impugned orders. The reading of zimni orders to show, that one witness was examined by the plaintiff, whereas the other witness present was ordered to be RSA NO.367 OF 1986(O&M) -4- bound down, as the witness had not brought the sale deed to be proved. The contention of the learned Senior counsel, therefore was that once the witness was bound down, it was duty of the Court to have summon the witness by using coercive methods, but the plaintiff appellant could not be penalized due to his non appearance. However, on consideration, I find no force in this contention of the learned Senior counsel for the plaintiff appellant. The Learned Court was to take coercive steps in case plaintiff would have taken steps to summon the witness and also for issuance of bailable warrants. Again opportunity was granted to the plaintiff appellant on payment of cost, though the plaintiff paid the costs but the witness were not summoned or examined. It was thereafter on 27.09.1994, when again no witness was present or summoned by the plaintiff appellant, and the counsel for the plaintiff appellant pleaded no instructions, that the Learned Court exercised the jurisdiction under Order 17 Rule 3, to dismiss the suit for non prosecution. The defendant appellant thereafter did not take any steps to get that order set aside, by invoking the provisions of order 9 but filed appeal against the order, which prima facie was not competent as the order was not a decree, which could appealed against. The order passed by learned trial court being in consonance with provisions of Order 17 Rule 3, does not call for interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. RSA NO.367 OF 1986(O&M) -5- The substantial question of law raised does not arise for consideration in the appeal or in the alternative deserves to be decided against the appellant. No merit. Dismissed. (Vinod K.Sharma) October 07, 2010 Judge p.singh