S. A. O. No. 68 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : S. A. O. No. 68 of 2011 Date of Decision : October 12, 2011 Sat Pal @ Ram Pal and another .... Appellants Vs. Smt. Sheela @ Poonam Raizada and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Nitin Thatai, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants no.1 and 2 have filed the instant Second Appeal against Order assailing judgment dated 04.08.2011 passed by learned Additional District Judge, Ludhiana, thereby allowing first appeal preferred respondent no.1-plaintiff and remanding the suit to trial court for fresh decision in accordance with law. Respondent no.1-plaintiff failed to lead any evidence in spite of five opportunities granted by the trial court and thereupon, evidence of the plaintiff was closed vide order dated 03.08.2009. The case was thereafter fixed for evidence of the defendants. After granting opportunities to defendants for their evidence, learned Civil Judge (Junior Division), S. A. O. No. 68 of 2011 2 Ludhiana, vide judgment and decree dated 26.05.2010, dismissed the plaintiff's suit, there being no evidence to prove the plaintiff's case. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Ludhiana, vide impugned judgment dated 04.08.2011 and thereby, suit has been remanded to trial court with direction that two effective opportunities should be given to the plaintiff to conclude her evidence and if some evidence is led by the plaintiff, thereafter, reasonable opportunities should be granted to the defendants to lead their evidence and thereafter, the trial court shall decide the suit on merits. The plaintiff has also been burdened with cost of Rs.10,000/-, out of which amount of Rs.5,000/- has to be paid to District Legal Services Authority and balance amount of Rs.5,000/- has to be paid to the defendants. Feeling aggrieved, defendants no.1 and 2 have filed the instant Second Appeal against Order. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that the lower appellate court proceeded on the wrong assumption that since the suit was not decided immediately after closing the evidence of the plaintiff by Court order under Order 17 Rule 3 of the Code of Civil Procedure (in short – CPC), the judgment of the trial court is vitiated. There is considerable merit in the contention. Judgment of the trial court was not S. A. O. No. 68 of 2011 3 vitiated merely because the suit was not decided then and there after closing the plaintiff's evidence under Order 17 Rule 3 CPC vide order dated 03.08.2009. This view finds support from Division Bench judgment of this Court in the case of Hukam Singh vs. Jodh Singh and others reported as AIR 1984 (P&H) 255. However, the lower appellate court has directed the trial court to grant two more opportunities to the plaintiff for her evidence, subject to payment of Rs.10,000/- as cost. This direction of the lower appellate court cannot be said to be perverse or illegal so as to warrant interference by this Court in exercise of second appellate jurisdiction. Counsel for the appellants contended that under proviso to Order 17 Rule 1 CPC, not more than three adjournments are to be granted to a party for its evidence, whereas in the instant case, plaintiff was granted five opportunities for her evidence, and therefore, her evidence was rightly closed by the trial court vide order dated 03.08.2009. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of M/s. Shiv Cotex vs. Tirgun Auto Plast P. Ltd. and others passed in Civil Appeal No. 7532 of 2011 (arising out of SLP (Civil) No.30105 of 2010) on 30.08.2011. I have carefully considered the aforesaid contention. It is correct that under proviso to Order 17 Rule 1 CPC, only three adjournments are required to be given to a party for its evidence. However, the aforesaid S. A. O. No. 68 of 2011 4 provision has been held to be directory and not mandatory. At the same time, the provision has to be followed in letter and spirit and not in its breach. In appropriate cases, more than three opportunities can be granted. In the instant case, even the trial court granted five opportunities to the plaintiff for her evidence. The lower appellate court thought it fit to grant two more opportunities to the plaintiff for her evidence. The said direction cannot be said to be perverse or illegal warranting interference in second appeal. Defendants have also been compensated by way of cost. Judgment in the case of M/s. Shiv Cotex (supra) is distinguishable because in that case, High Court had set aside judgments of both the courts below by allowing second appeal without formulating substantial questions of law. Of course, Hon'ble Supreme Court also held that ordinarily, nor more than three opportunities should be granted to a party for evidence. In the instant case, the position would have been different if plaintiff would have come to this Court. However, now the lower appellate court has exercised its discretion by granting two more opportunities to the plaintiff for her evidence on payment of Rs.10,000/- as cost. The said discretion does not warrant interference in second appeal. For the reasons aforesaid, I find no merit in the instant Second Appeal against Order, which is accordingly dismissed in limine. October 12, 2011 ( L. N. MITTAL ) monika JUDGE