RSA No.2178 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2178 of 2008 Date of Decision: 06.08.2009 Krishan Kumar ...Appellant VERSUS Ude Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. Sandeep Sharma, Advocate for the appellant. Mr. S. P. Chahar, Advocate for the respondents. *** AJAY TEWARI J. (ORAL) This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the plaintiff-appellant claiming that he had inherited the property of Chand Ram by way of will. The primary contention raised in this appeal is that the evidence of the appellant was wrongly closed without providing legitimate opportunity to prove his case. A perusal of the various zimini orders dated 01.06.2004, 27.07.2004, 21.09.2004 and 26.10.2004 are reproduced herein below:- “Copy of Order Dated 01.06.2004:- Present:- Sh. L. P. Jain, Advocate for the plaintiff. Sh. R. K. Verma, Advocate for defendant nos.1 to 4. Remaining defendants exparte. RSA No.2178 of 2008 -2- One PW is present, examined and discharged. PW Balbir Singh, Lamberdar from village Dubaldhan, is present but counsel for plaintiff submitted that this witness cannot be examined in the absence of record produced by Clerk from office of Sadar Kanungo, Jhajjar. Notice issued to Sadar Kanungo, Jhajjar, received back duly served but neither concerned Clerk nor Sadar Kanungo, Jhajjar appeared himself. Let bailable warrant of Rs.5000/- be issued against Sadar Kanungo, Jhajjar on filing of IS annexed herewith along with the petition as annexure for the kind perusal of this Hon'ble Coiurt etc. No other PW is present nor summons received back. Therefore, on the next date of hearing, no other PW except PW Balbir and concerned Clerk from office of Sadar Kanungo, Jhajjar shall be examined. Adjourned to 27.7.2004 for Pws. Sd/- CJ(JD), Jhajjar, 1.6.2004” “Copy of Order Dated 27.07.2004:- Present:- Sh. L. P. Jain, Advocate for the plaintiff. Sh. R. K. Verma, Advocate for defendant nos.1 to 4. Remaining defendants exparte. PW Balbir Singh village, Lamberdar is present but could not examined as record from the office of the Sadar Kanungo, Jhajjar is not summoned. Let bailable RSA No.2178 of 2008 -3- warrant of Rs.500/- be issued against Tehsildar, Sadar Kanungo and concerned clerk on filing of P.F. etc. Serving Constable is directed to remain present in the Court on the next date of hearing. Adjourned to 21.09.2004, for PWs. Sd/- CJ(JD), Jhajjar. 27.07.04” “Copy of Order Dated 21.09.2004:- Present:- Sh. L. P. Jain, Advocate for the plaintiff. Sh. R. K. Verma, Advocate for defendant nos.1 to 4. Remaining defendants exparte. In pursuance of bailable warrant Naib Kanungo, Jhajjar had made a statement that summoned file is not available in his department in view of this witness is discharged. Plaintiff is at liberty to summon the concerned file from the appropriate department. As the case is of year 1997 it is made clear that no further opportunity shall be given for PWs. Adjourned to 26.04.2004. Sd/- (A. K. Sharma) CJ(JD), Jhajjar. 21.09.04” “Copy of Order Dated 26.10.2004:- Present:- Sh. L. P. Jain, Advocate for the plaintiff. Sh. R. K. Verma, Advocate for defendant nos.1 to 4. Remaining defendants exparte. RSA No.2178 of 2008 -4- PW Prit Singh, Record Keeper, D.C. Office, Jhajjar has brought the summoned record bearing file of case no.8/SDO(c) decided on 11.4.1996 qua mutation no.3240 village Dubaldhan. The file be kept on record till the decision of the present case. No other PW is present nor summoned on behalf of the plaintiff for today. The Ld. Counsel for the plaintiff has sought further adjournment for PWs and the request is vehemently opposed by counsel for defendants no.1 to 4. Heard perused the record. In the present case issues were framed on 24.10.2001, and the case was adjourned for PWs on 30.4.2002, 26.11.2002, 20.5.2003, 4.11.2003 and thereafter, plaintiff moved an application for amendment of plaint which was allowed vide order dated 6.1.2004. The case was again adjourned to 10.2.2004, 6.4.2004, 1.6.2004, 27.7.2004, 21.9.2004 and 26.10.2004. The Ld. Counsel for the plaintiff undertook to examine PW Balbir and no other PW after 1.6.2004. The case was adjourned for PWs time and again because summoned file was not traceable. As summoned file is received today, but for further adjournment, as the case of the year 1997, there is no ground for justification, hence PW is closed. Now case is adjourned to 30.11.2004 for DWs. Sd/- CJ(JD), Jhajjar. 26.10.04” RSA No.2178 of 2008 -5- Learned counsel for the respondents has not disputed the correctness of these orders. The question now arises whether on 26.10.2004 the absence of Balbir Chand could be fatal to the case of the appellant. It would be seen that file containing the original Will was repeatedly sought to be summoned by the appellant but he was not successful. It was only on 26.10.2004 that the said file was produced before the trial court. The trial court passed an order directing the file to be retained in the Court. It would also be seen that on previous two dates Balbir Chand was present but could not be examined in view of the non-availability of the original Will. In my opinion, having directed retention of file, one more opportunity should have been granted to the appellant to examine Balbir Chand, and that having not been done, it would be a case of illegal closure of evidence. Learned counsel for the respondents has however argued that the order passed in 2004 was also revisable and if the appellant had filed a revision, atleast so much time would not have lapsed. It may be mentioned that learned counsel for the respondents has not denied that a revisable order can be challenged in the appeal. His only grouse is that because of this action avoidable prejudice was caused to the respondents. I find merit in this contention. Consequently, I decide in point of law that the closure of the evidence of the appellant was illegal. In the circumstances, judgments and decrees of the Courts below are set aside and the matter is remanded back to the trial court. The parties through counsel are directed to appear before the learned Civil Judge (Sr. Division), Jhajjar on 29.10.2009 who will either take the case on his own board or mark the same to any other learned Judge. RSA No.2178 of 2008 -6- The trial court is directed to give one effective opportunity alongwith record to the appellant to examine Balbir Chand. Thereafter three effective opportunities shall be given to the respondents to lead any evidence in rebuttal. This order is however subject to cost of Rs.30,000/- to be paid by the appellant by way of Demand Draft/s in favour of the respondents No.1 to 4 (since the other respondents were proceeded against ex-parte by the Courts below). In case, costs are not tendered as mentioned above, the appeal would be deemed to have been dismissed without any further reference to this Court. As the main case has been disposed of therefore all the pending civil miscellaneous applications in the case also stand disposed of. ( AJAY TEWARI ) August 06, 2009 JUDGE ashish