RSA No. 762 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 762 of 2005 (O&M) Date of decision: September 13, 2010 Om Parkash ...Appellant Versus Thana Ram and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Ms. Kiran Bala Jain, Advocate, for the appellant. Mr. ND Achint, Advocate. Mr. Sanjay Vij, Advocate. GURDEV SINGH, J. Appellant/plaintiff-Om Parkash, has preferred this second appeal against the judgment and decree dated 24.8.2004 passed by the District Judge, Ambala, vide which he dismissed the appeal preferred by the plaintiff against the judgment and decree dated 4.9.2003 passed by the Civil Judge (Jr. Divn.) Ambala, dismissing his suit for declaration to the effect that he has become the owner in possession of the land, in dispute, measuring 6 kanals 3 marlas, situated in village Gadhauli, Tehsil Naraingarh, District Ambala, and for permanent injunction restraining the respondents/defendants from dispossessing him from this land and also from transferring or alienating the same in any manner whatsoever. The case pleaded by the plaintiff in the plaint is that Thane Ram-defendant No.1 was the owner of the land in dispute and he is coming in possession thereof since Kharif 1982 and entries to that effect have already been incorporated in the khasra girdawari as 'gair maroosi nazayaz RSA No. 762 of 2005 2 kasat'. He is coming in possession, as such, for the last 13 years without payment of any rent to any person, including defendant No.1. His possession has also been reflected in the jamabandies for the years 1986-87 and 1991-92. His possession was open, hostile and continuous against the entire world, including the defendants, for the last 13 years and, as such, the same has matured into ownership. He made request to the defendants to acknowledge his ownership but they refused, which necessitated the filing of the suit for declaration and permanent injunction. The suit of the plaintiff was contested by the defendants. In the written statement they denied the contentions of the plaintiff and pleaded that defendant No.1 is the owner of the land in dispute which had been allotted to him in lieu of his land left in erstwhile Pakistan and the same is being managed by defendant No.2 on his behalf, who has been appointed as general attorney. It is defendant No.1, who is coming in possession of the land in dispute. The entries in the khasra girdwari and the jamabandi, in the column of possession, are illegal without any basis and have been made without their knowledge. The plaintiff himself admitted defendant No.1 to be owner in possession of this land by entering into an agreement dated 6.3.1995. Vide that agreement, he agreed to purchase the land in dispute for a sum of Rs. 70,000/- and paid Rs. 15,000/- as earnest money. Though defendant No.1 had always been ready and willing to perform his part of the contract, yet the plaintiff failed to perform his part of the contract, as he failed to pay the balance sale consideration and on account of failure to perform his part of the contract, the earnest money so paid by him stood forfeited. The defendants made a counter claim in their written statement for the recovery of the possession of the land in dispute from the plaintiff on the RSA No. 762 of 2005 3 ground that he is in unauthorized possession thereof and that the unauthorized possession of the plaintiff came to their knowledge when they visited the village. In replication to the written statement, the plaintiff denied the contentions raised therein and reiterated his averments made in the plaint. He denied that any such agreement was so executed by defendant No.1 in his favour. On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiff is the owner in possession of the suit property on the basis of adverse possession ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff has no locus standi to file the present suit ? OPD 4. Whether the plaintiff is estopped by his own acts and conduct to file the present suit ? OPD 5. Whether the plaintiff had entered into an agreement to sell with defendant No.1 for the sale of this land ? OPD 6. Whether the defendant No.1 has always been ready and willing to perform his part of the agreement ? OPD 7. Whether defendant No.1 is entitled to the possession of the suit land ? OPD 8. Whether proper court fee has been paid ? OPD 8A. Whether the defendant No.3 is a bonafide purchaser of the suit property, if so, its effect ? OPD RSA No. 762 of 2005 4 9. Relief. The plaintiff was given a number of opportunities to produce his evidence but he failed to produce any evidence and ultimately the same was closed by order dated 4.9.2003 and resultantly, his suit was dismissed, vide aforesaid judgment. He preferred an appeal in which he also challenged the above said order but the same was dismissed, vide aforesaid impugned judgment and decree. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that sufficient opportunity was not granted to the plaintiff to produce his evidence. The suit continued to be transferred from one court to the other and after the same was received by transfer in the said court, the same was dismissed after granting two opportunities. Therefore, it cannot be said that sufficient opportunity was given to the plaintiff. She requested that one more opportunity be granted to the plaintiff to produce his evidence. On the other hand, it has been submitted by the learned counsel for the defendants that seven effective opportunities were granted to the plaintiff to produce his evidence, but he did not opt to produce any evidence. Merely on the ground that the suit was transferred from one court to another it cannot be said that every such court was supposed to allow sufficient opportunity. In fact, the plaintiff was not interested in producing any evidence and was simply delaying the trial of the suit as defendant No.1 made a counter claim for recovery of the possession on the ground that the possession was unauthorisedly taken by the plaintiff and that he failed to perform his part of the contract under the agreement to sell, which was executed in his favour by defendant No.1. There is no ground for affording RSA No. 762 of 2005 5 any further opportunity to the plaintiff to produce his evidence. In this case, Des Raj was impleaded as defendant No. 3 during the pendency of the suit. He filed his independent written statement, in which he supported the case of defendants No. 1 and 2. He further pleaded that he purchased 2 kanals and 1 marla of land, being 1/3rd share of the total suit land measuring 6 kanals 3 marlas, from defendant No.1, vide sale deed dated 12.3.1997 for valuable consideration of Rs. 24,000/- where he constructed a house and is in continuous possession thereof. However, in his replication filed to the written statement, the plaintiff denied the contentions raised therein. It was in view of the pleadings of this newly added defendant that additional issue was framed on 15.5.1999. Thereafter, eight effective opportunities were granted to the plaintiff to produce his evidence but he did not produce any such evidence. On the face of it, it appears that a number of opportunities were granted to the plaintiff to produce his evidence but it is to be noted that before closing his evidence, no such warning was given to him that the last opportunity was being granted, nor he was ever burdened with costs. The provisions of Order 17 Rule 3 of the Code of Civil Procedure are penal in nature and before passing such order, there must be sufficient material on the record to justify the same. It is well settled that while passing such order of closing the evidence, which is penal in nature, that order must follow an order of lesser gravity. No such order of lesser gravity was passed by the trial court. It is also to be noted that it was only the suit of the plaintiff, which was dismissed, whereas for deciding the counter claim an adjournment was granted. Onus to prove some of the issues was on the RSA No. 762 of 2005 6 defendants and the plaintiff was to be given opportunity to produce his evidence in rebuttal to the evidence to be produced by defendant No.1 on those issues. When the matter was still kept alive, the trial court in all fairness should have granted one more opportunity to the plaintiff to produce his evidence. The courts are respected for doing justice to the parties by deciding matter on merits and not for denying the decision on merit, by resorting to the technicalities. It is a case where interest of justice requires that plaintiff should be given one more opportunity to produce his evidence. However, the defendants are to be compensated for the prejudice which is likely to be caused to them. Accordingly, the order dated 4.9.2003, closing the evidence of the plaintiff by order is set aside, subject to the payment of Rs. 5,000/- as costs. The appeal is hereby accepted. The judgment and decree of the trial court and the appellate court are set aside. The suit is remanded to the trial court and it is to decide the same a fresh after giving one effective opportunity to the plaintiff to produce his evidence. The trial court shall give its assistance to the plaintiff to summon the witnesses through the court, if the plaintiff undertakes to get those witnesses served at his own responsibility. The parties are directed to appear before the trial court on 27.10.2010. Records of the courts below be returned. September 13, 2010 (GURDEV SINGH ) prem JUDGE