C.R. No.2530 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.2530 of 2007 (O&M) Date of Decision: 21.1.2009. M/s Sanjeev Builders ....Petitioner Versus Union of India and another ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr.Sameer Rathore, Advocate for Mr.Sumeet Goel, Advocate for the petitioner. Mr.S.K.Sharma, Advocate for the respondents. RAJESH BINDAL, J. **** Challenge in the present petition is to the order dated March 28, 2007 passed by learned Additional District Judge, Bathinda, whereby application dated March 28, 2007, filed by the respondents for leading additional evidence was allowed. Briefly the facts are that the petitioner was awarded contract by the respondents. On account of certain dispute the matter was referred to the arbitrator who vide his award dated January 27, 1994 determined certain amount payable to the petitioner. An application was filed before the Civil Court for making the award of the arbitrator rule of the Court. After hearing the objections raised by the respondent vide order dated January 19, 1999, the award passed by the arbitrator was made rule of the Court. The respondents filed appeal against the order passed by the Civil Court before the learned Additional District Judge which was belated. The learned Additional District Judge, did not find that the ground for condonation of delay was made out and accordingly dismissed the C.R. No.2530 of 2007 (O&M) -2- appeal vide order dated October 6, 2001. The respondent approached this Court by filing Civil Revision No. 3228 of 2002 in which this Court opining that the cause shown by the respondents for delayed filing of appeal was sufficient for condonation of delay, accepted the petition and directed the learned Additional District Judge, Bathinda to entertain the appeal filed by the respondents and decide the same on merits in accordance with law. It was further directed that the matter being quite old, the appeal should be decided expeditiously preferably on or before March 31, 2007. The order was passed on September 6, 2006. Thereafter the proceedings continued before the learned Additional District Judge and at the fag end of the time limit prescribed by this Court for final disposal of appeal on or before March 31, 2007, an application was filed by the respondents for adducing additional evidence with the plea that an affidavit Ex.R1 filed by the respondents in their evidence has not been considered by the trail Court for the reason that the petitioner did not have an opportunity to cross examine the person who had sworn the affidavit. On the same date after getting reply of the petitioner, the prayer in the application was considered and accepted by the learned Additional District Judge, vide impugned order with the observation that the counsel Sh.Surinder Singh Sidhu who had filed affidavit Ex.R-I on behalf of respondents was not authorized by them to appear on their behalf and the evidence of the respondents was also closed on the statement made by him though he was not authorized. It is this order passed by the learned Additional District Judge, which is impugned in the present petition. Learned counsel for the petitioner submitted that the petitioner was awarded contract in the year 1987-88 for constructing married accommodation for certain new units at Bathinda. On account of certain dispute the arbitration clause was invoked. After hearing the parties the arbitrator vide his award dated January 27, 1994, determined certain amount payable to the petitioner. The award of the arbitrator was made rule of the Court in the absence of any evidence led by the respondents. In appeal filed before the learned Additional District Judge, no ground with regard to the C.R. No.2530 of 2007 (O&M) -3- evidence of the respondents having been closed on the statement of non-authorised Advocate or seeking permission for getting the person cross-examined, who had sworn affidavit Ex.R1, was raised though this was the sole issue in the appeal being filed by the respondents as the ground for challenging the award was the mis- conduct of the arbitrator. Even before this Court against the order of learned Additional District Judge, dismissing the appeal filed by the respondents as time barred, no ground was taken with regard to the affidavit or cross-examination of the witness. After the acceptance of revision filed by the respondents challenging the order passed by the learned Additional District Judge, and referring the matter back to him for consideration on merit, no steps were taken by the respondents with regard to the prayer for additional evidence at the first opportunity. The application was filed at the fag end of the time limit fixed by this Court for finally disposing of the appeal. The same is not bonafide. The matter having already been delayed for more than two decades on account of repeated lapses on part of the respondents, the petitioner should not be made to suffer on that account. It was for the respondents to have seen at the relevant time that they were represented by a counsel who is authorised by them. Nearly after eight years of the order having been passed by the learned trail Court on the basis of the affidavit filed and closer of evidence by non-authorised Advocate, the issue was sought to be reopened only on March 28, 2007 by filing the application, which cannot be permitted. On the other hand learned counsel for the respondents submitted that the respondents had authorised Sh. H.S. Jaurkian, Advocate, to appear on their behalf on the date fixed for evidence of the respondents/defendants but proxy counsel Sh. Surinder Singh Sidhu, appeared and closed the evidence by getting his statement recorded. He was not the counsel authorised by the respondents to appear on their behalf. Even the affidavit was not tendered in evidence by him. All what is recorded in the order is that Sh.Surinder Singh Sidhu, tendered affidavit of Sh.B.L.Khera, the then AGE (I) Bathinda. He further submitted that this is the only evidence which is C.R. No.2530 of 2007 (O&M) -4- to be led by the respondents and in case the application for leading additional evidence is not allowed, the respondents will suffer prejudice. Otherwise the affidavit furnished by the respondent, which is already on record as Ex.R1 should be read in evidence as there was no objection raised by the petitioner at the time of production of affidavit on record and the same being exhibited. Heard learned counsel for the parties and perused the record. A perusal of the record shows the conduct of the respondents. The contract was awarded to the petitioner for construction of married accommodation for certain units at Bathinda way back in 1987-88. On account of dispute and arbitration clause having been invoked, the Arbitrator passed the award on 27.1.1994 which was made Rule of the Court on 19.1.1999, on account of the fact that the respondents did not lead any evidence in defence, though a plea was sought to be taken about the misconduct of the Arbitrator. After the award of the Arbitrator having been made Rule of the Court, vide order dated 19.1.1999, a belated appeal was filed before the learned Additional district Judge on 27.10.1999. The respondents having failed to show that the cause shown for seeking condonation of delay was bonafide and reasonable, the appeal was dismissed as time-barred on 6.10.2001. The order was impugned before this Court by filing Civil Revision No.3228 of 2002, which was allowed by this Court vide order dated 6.9.2006, while setting aside the order passed by the learned Additional District Judge dismissing the application for condonation of delay and directing him to decide the same on merits. Considering the fact that the lis between the parties was pending for quite a long time, a direction was given for its expeditious disposal, preferably upto 31.3.2007. Thereafter, again the proceedings remained pending before the learned Additional District Judge and it was only at the fag end of the time limit, fixed by this Court that on 28.3.2007, an application was filed by the respondents for leading additional evidence taking the plea that proper opportunity was not granted to the respondents for leading evidence. The affidavit (Ex. R1) tendered by them in evidence has C.R. No.2530 of 2007 (O&M) -5- not been considered by the learned Court below. In the interest of justice, opportunity for leading additional evidence was prayed for. It was not mentioned in the application as to what evidence the respondents wanted to produce by leading additional evidence. The application was as vague as possible. On the same date, reply to the application was filed and the impugned order was passed by the learned Court below while accepting the application for leading additional evidence and by setting aside the order passed by the trial Court making the award Rule of the Court, the matter was remitted back for re-trial. While accepting the prayer made by the respondents for leading additional evidence, it was noticed by the learned court below in the impugned order that the evidence of the respondents was closed merely on the statement of Shri Surinder Singh Sidhu, Advocate, who was not authorised by the respondents to appear on their behalf and on account of that, serious prejudice has been caused to them as they could not lead the evidence, which was necessary for the purpose of decision of the objections raised by them before the trial court in the proceedings for making the award Rule of the Court. Even the affidavit of B.L. Khera, AGE (1), Bathinda was also tendered by the same counsel, on whose statement the evidence of the respondents was closed. Another fact, which is noticed in the impugned order, is that Shri Surinder Singh Sidhu, Advocate had appeared on behalf of Shri H.S. Jaurkia, Advocate, who was the counsel instructed by the respondents to appear on their behalf. Though the affidavit filed by the respondents was exhibited as R.1 through a counsel which, according to them, was not authorised, still the fact remains that there was no illegality committed by the trial court in not reading the same in defence evidence of the respondents, as the executant of the affidavit was never produced for cross-examination. Though in the absence of any evidence led by the respondents in spite of number of opportunities having been afforded by the trial court, the award of the Arbitrator was made Rule of the Court, but still they filed belated appeal. The issue regarding the C.R. No.2530 of 2007 (O&M) -6- counsel being authorised or unauthorised for tendering the affidavit in evidence or for making a statement for closure of the evidence was never raised. Even in the Civil Revision filed before this Court against the order passed by the learned Additional District Judge dismissing the appeal as time-barred, no such plea was raised. Even after the decision of the Civil Revision by this Court condoning the delay in filing of appeal by the respondents and directing the learned Additional District Judge to decide the same on merits within a fixed time frame, no such application was filed immediately. The same was filed nearly six months thereafter which itself is quite vague. The contents of the application do not satisfy the pre-conditions for permitting the respondents to lead additional evidence. The evidence led by them was not considered for the reason that the person, whose affidavit was produced, was never presented in the court for cross-examination. It cannot be said that there was due diligence by the respondents. Every thing was well within their knowledge as they were fighting the case since long. A litigation cannot be permitted to continue till infinity. Law for the State or its functionaries is not different. Though the courts give some latitude to them on account of impersonal attitude of the officers working in the State or various departments therein, but repeated defaults and laxity cannot be condoned. In the process of trial, due to lapse of time certain rights also get vested in the opposite party which should not be taken away lightly. For the reasons mentioned above, I find merit in the present petition. Accordingly, the impugned order dated 28.3.2007, passed by the learned Additional District Judge, Bathinda, who remitted the matter back to the trial court, is set aside. The application filed by the respondents for leading additional evidence is dismissed. The learned court below is directed to dispose of the appeal pending before it within a period of 30 days from the receipt of a copy of this order. C.R. No.2530 of 2007 (O&M) -7- The revision petition is disposed of in the manner indicated above. (RAJESH BINDAL) 21.1.2009 JUDGE mk/reema