RSA No.2425 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2425 of 2008 Date of Decision:27.11.2008 Ram Kanwar & Ors ....appellant Versus Gram Panchayat, Bhora Kalan & Ors .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Sumeet Goyal, Advocate for the appellants **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below, whereby suit of the plaintiffs for declaration with consequential relief of permanent injunction has been dismissed as evidence of the plaintiffs was closed by the order of the Court. In this case, issues were framed by the trial Court on 24.05.2005. After framing of the issues on 24.05.2005, the case stood adjourned to 31.10.2005 for plaintiffs' evidence but on that date no evidence was produced by them and the case was adjourned to 22.02.2006 on their request. On that date as well, no evidence was produced by the plaintiffs and one more adjournment was granted and the case was adjourned to 09.10.2006. On that date also, no evidence was produced by them. However, last opportunity was granted for 07.03.2007 subject to payment of costs of Rs.500/- On that date, plaintiff appeared as PW1 and submitted his affidavit Ex.PW1/A in lieu of his examination-in- chief. His cross-examination was deferred as the second half of the day RSA No.2425 of 2008 2 was declared as a holiday and the case was adjourned to 09.08.2007 for PWs at own responsibility. It was also mentioned as last opportunity. On 09.08.2007, neither plaintiff Ram Kanwar appeared for cross-examination nor any other witness was produced. Finding no justification for further adjournment, the learned trial Court closed evidence and dismissed the suit on that very date. The plaintiffs filed an appeal against the judgment and decree of the trial Court . In the appeal, the plaintiffs submitted that the trial Court had erred at law while closing the evidence of the plaintiff under Section 35-B CPC as the cost imposed vide order dated 09.10.2006 stood paid on the next date i.e.07.03.2007 and therefore, there was no occasion for the trial Court to close the evidence under Section 35-B CPC and the same has vitiated the judgment and decree of the trial Court. The Lower Appellate Court while dealing with this argument observed that no doubt costs were paid on the next date i.e.07.03.2007 but that fact itself was not sufficient to allow the plaintiffs adjournment after adjournment that too without any justification and dismissed the appeal. Still not satisfied, the plaintiffs have filed the present appeal in this Court challenging the judgment and decree of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have erred at law while closing the evidence of the plaintiffs under Section 35-B CPC on account of non-payment of costs and deciding the suit on merits on that very date despite the fact that no order imposing any costs to be paid by the plaintiffs was there on the record of the case and thus the judgment and decrees of the Courts below are liable to be set aside. In find no force in the contentions raised by the learned counsel for the appellants. The plaintiffs have placed on record order dated 09.08.2007 RSA No.2425 of 2008 3 (Annexure P-2) vide which the trial Court has closed the evidence of the plaintiffs by order. No doubt, In the said order it is mentioned that the evidence of the plaintiffs was closed under Section 35 of the CPC, but it was also noted that the plaintiff who has stepped into the witness box as PW1 and tendered his affidavit as PW1/A on the previous date has not turned up for his cross-examination and because of that his affidavit cannot be read into evidence and thus finding no evidence the case was dismissed. The Lower Appellate Court while dismissing the appeal has observed that simply because the costs imposed vide order dated 09.10.2006 were paid on the next date i.e.07.03.2007, that fact itself is not sufficient to allow the plaintiffs adjournment after adjournment and that too without any justification. The plaintiffs were given several opportunities but they failed to produce even a single witness. No other point has been urged. Thus, the appeal is without any merit. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 27.11.2008 neenu