RSA No.3630 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3630 of 2007(O&M) Date of decision: .2008 Pawan Kumar and others ......Appellants Versus Krishan Chand and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. P.S. Chauhan, Advocate for the appellants. Rakesh Kumar Garg, J . This is plaintiffs' second appeal against the judgment and decrees of the Courts below whereby their suit for possession of the land in dispute and declaration that judgment and decree dated 20.1.1989 passed in Civil Suit No.20/89 titled as Krishan Chand etc. v. Babu Ram and the judgment and decree dated 10.9.1990 passed in Civil Suit No.1658 of 1990 titled as Krishan Chand etc. v. Babu Ram regarding the aforesaid land are illegal and void, has been dismissed under Order 17 Rule 3 CPC for want of evidence. Briefly stated, one Rulia Ram son of Shanker was owner in possession of the land in dispute and after his death, his three sons, namely, Dhan Raj, Babu Ram and Ranjit inherited his estate. The plaintiffs and defendant No.3 are the daughters of Dhan Raj whereas Babu Ram and Ranjit were unmarried and issueless. Dhan Raj died on 21.10.1983 leaving behind the plaintiffs and defendant No.3 as his legal heirs. Babu Ram uncle of the plaintiffs had got entered and sanctioned RSA No.3630 of 2007(O&M) 2 mutation No.1312 dated 28.3.1990 regarding the share of Ranjit in the revenue record alleging that Ranjit was not heard for the last more than 53 years and he was the only legal heir whereas Dhan Raj brother of Ranjit was alive at that time and the property of Ranjit would have devolved upon Dhan Raj and Babu Ram in equal shares and, therefore, mutation No.1312 is illegal. It is the further case of the plaintiffs that the suit for declaration was filed by defendants No.1 and 2 against Babu Ram regarding the share of Ranjit and collusive decree was passed on 10.9.1990 by the then Sub Judge, Ambala. No family partition had taken place between defendants No.1 and 2 and Babu Ram. Babu Ram was not competent to give whole of the land owned by Ranjit Singh to defendants No.1 and 2, in the presence of Dhan Raj, father of the plaintiffs. The aforesaid judgment and decree dated 10.9.1990 passed in Civil Suit No.1658/90 was illegal and not binding upon the rights of the plaintiff. Babu Ram had also suffered a collusive decree regarding his share of his land in dispute in favour of defendants No.1 and 2 on 20.1.1989 in the Court of Sh. A.K. Jain, Sub Judge, Ambala in civil suit titled as Krishan Chander v. Babu Ram on the basis of oral family settlement. In fact, no such family settlement had taken place. The plaintiffs who are the daughters of Dhan Raj and being the LRs of Babu Ram were also entitled to get share in the land of Babu Ram. Thus, judgment and decree dated 20.1.1989 passed in Civil Suit No.20/89 titled as Krishan Chander v. Babu Ram was also illegal, null and void. The land which was the subject matter of the aforesaid two decrees could not be transferred by way of collusive decree as value of the land was more than Rs.100 and the above said decrees were not got registered. Babu Ram was not competent to transfer his share and the share of Ranjit Singh to defendants No.1 and 2 by way of Civil Court decree ignoring the rights RSA No.3630 of 2007(O&M) 3 of the plaintiffs and defendant No.3. Hence, this suit. The suit was contested by the defendants and written statement dated 8.12.1999 was filed by them admitting that Rulia Ram was the owner of the property. It was pleaded that the plaintiffs have no right to claim inheritance of Dhan Raj. It was also admitted that Ranjit Singh was not heard for the last many years before the death of Rulia Ram. It was also admitted that Babu Ram was unmarried and issueless. It was denied that there was any illegality regarding the sanction of mutation No.1312 and passing of decrees dated 20.1.1989 and 10.9.1990. On the pleadings of the parties, issues were framed by the trial Court vide order dated 3.2.2000. The evidence of the plaintiffs was closed by the trial Court vide order dated 4.12.2006 under Order 17 Rule 3 CPC, which is reproduced hereunder: “No evidence of the plaintiff is present. Adjournment sought by the plaintiffs without showing any plausible cause. Today is the last opportunity for evidence of the plaintiffs. Civil Procedure Code does not provide for granting of opportunity merely on asking. It is required to be given whenever it is beyond the control of the party. Today's adjournment has not been justified. Request of ld. Counsel for the plaintiffs for adjourning the case is declined. Evidence of the plaintiffs is ordered to be closed under Section 17 Rule 3 CPC. Closing of evidence of the plaintiffs means failure on their part to prove their case in affirmative. No purpose will be served to proceed ahead with the trial of the case to record the evidence of the defendants because if the evidence of the defendant is recorded it will not bring RSA No.3630 of 2007(O&M) 4 any improvement in the case of the defendants, rather it will be futile exercise and wastage of the court time. Hence, the evidence of the defendants is also closed. Vide even date judgment, the suit of the plaintiffs has been dismissed. Parties shall bear their own costs. Decree sheet be prepared accordingly and file be consigned to record room after due compliance.” The suit of the plaintiffs was dismissed for lack of evidence vide judgment and decree of the trial Court dated 4.12.2006. Aggrieved against the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal which was also dismissed vide judgment and decree dated 12.2.2007 passed by the District Judge, Panchkula. Still not satisfied, the plaintiffs have filed the present appeal against the impugned judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have erred while non-suiting the appellants on the basis of order dated 4.12.2006 whereby evidence of the plaintiffs was closed by order, as the said order has been passed by the trial Court without affording full opportunity to produce the entire evidence in the case of the appellants and the evidence of the plaintiffs was closed by order of the Court hurriedly as even no last date was given to the plaintiffs. Learned counsel has further argued that one PW who was present on 23.5.2003 tendered his affidavit in evidence but on request of the defendants the cross-examination was deferred and the case was adjourned to 16.1.2004. On that date or at a later date fixed, the defendants never tried or requested for the cross-examination of the said witness. Thus, no fault can be found with the plaintiff-appellants and it RSA No.3630 of 2007(O&M) 5 was the duty of the defendants to cross-examine the said witness. Learned counsel for the appellant has prayed that since the provisions of the Civil Procedure Code are handmade for the administration of justice therefore, the appeal be allowed and judgment and decrees of the Courts below be set aside and the appellants be given one more effective opportunity to adduce evidence to prove their case. I have heard learned counsel for the appellants and perused the record. A perusal of the record shows that issues were framed in this case on 3.2.2000 and the evidence was closed vide order dated 4.12.2006. Thus, the case remained pending for evidence of the appellants for more than six years and during this period many opportunities were granted to the plaintiff-appellants for adducing evidence out of which at least five opportunities were effective yet the plaintiffs failed to adduce evidence. The argument of the learned counsel for the appellants that the plaintiffs were given effective opportunities to produce their entire evidence is not tenable. From the zimni orders, it is also clear that PW-1 was not present in Court on 16.1.2004 for his cross-examination. In fact, from the perusal of all the zimni orders, it is crystal clear that PW-1 never came present in Court for his cross-examination. The evidence was to be adduced by the plaintiffs at their own risk and responsibility. It is not the case of the appellants that for enforcing the presence of the witnesses they had sought assistance of the Court and in spite of that the witnesses were not present and therefore, they were not at fault. Faced with this situation, the learned counsel has tried to justify the case of the appellants by stating that Sh. Jagir Singh, learned counsel appearing on behalf of the appellants had noted down a wrong date for recording of the evidence of the plaintiffs and the said wrong date RSA No.3630 of 2007(O&M) 6 was informed by him to the plaintiffs and because of this reason the plaintiffs were not able to produce their evidence on 4.12.2006 as they had wrongly noted down the date as 20.12.2006 as was told to them by their counsel. Thus, it was prayed that in the interest of justice, the order dated 4.12.2006 passed by the trial Court vide which evidence of the plaintiffs was ordered to be closed under Order 17 Rule 3 CPC and the judgment and decree passed by the trial Court dismissing the suit be set aside and the case be remanded to the trial Court with a direction to afford at least one opportunity to the plaintiffs to lead their evidence. In support of this argument, the appellants have placed on record Annexure A-1 along with C.M. No.10142-C of 2007 i.e. copy of brief envelop of counsel for the plaintiffs before the trial Court to show that a wrong date was noted i.e. 20.12.2006 instead of 4.12.2006. (The contention of the counsel for the appellants is not supported from the zimni orders passed by the trial Court in the case). As per this brief, on 22.10.2006, the case was adjourned to 20.12.2006. However, this is not the case as per the zimni orders recorded in the case by the trial Court. The case was never fixed for 22.10.2006 and therefore, there was no occasion for the counsel for the plaintiffs to note down a wrong date in the case as 20.12.2006. The zimni orders show that the case was fixed on 12.10.2006 and 4.12.2006. Thus, the stand of the appellants is falsified from the record. No doubt, the provisions of Civil Procedure Code are hand made for the administration of justice. However, no relief can be granted to the appellants as equity is not in their favour. The plaintiffs cannot be allowed to take advantage of their own fault. The plaintiff-appellants have failed to prove their case, in spite of the fact, that case was adjourned from time to time to enable the appellants to adduce evidence and in spite of that the plaintiff-appellants failed. Moreover, the Lower Appellate Court has passed the impugned judgment and decree RSA No.3630 of 2007(O&M) 7 after perusing the record. While dismissing the appeal, the Lower Appellate Court observed as under: “In this case in all five effective opportunities were granted for the evidence of the plaintiffs and on 12.10.2006 last opportunity was granted to the plaintiffs for their evidence for 4.12.2006. On 4.12.2006, Shri D.P. Saini, learned counsel for the plaintiffs had appeared before the trial Court. If, on 12.10.2006, he had noted down the next date as 20.12.2006, he could not have appeared in the trial Court on 4.12.2006. Besides, there was nothing in the zimni order dated 4.12.2006 to show that on that date, it was submitted by the learned counsel for the plaintiffs before the trial Court that on the previous date i.e. 12.10.2006, he had noted down the next date of hearing as 20.12.2006 and because of this reason, the evidence of the plaintiffs could not be produced on that date.” Even the learned counsel for the appellants was unable to point out any illegality or infirmity in the judgment and decree of the Lower Appellate Court. Thus, for the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. , 2008 (RAKESH KUMAR GARG) ps JUDGE RSA No.3630 of 2007(O&M) 8