R.S.A.No.897 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.897 of 2006 Date of Decision : 6.5.2009 Balwant Singh and others ....Appellants Versus Mrs.Rajinder Kaur Gill and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Pankaj Kalia, Advocate for the appellants. Mr.Deepak Thapar, Advocate for the respondents. ... MAHESH GROVER, J. This appeal has been filed by the plaintiffs whose suit was dismissed by the learned trial Court vide judgment dated 23.10.1998 and the first appeal was also dismissed vide judgment dated 9.1.2006 on the ground of limitation as it was barred by 7 months. The facts of the case are that one Shiv Singh was owner in possession of House No.74, Sector 2-B, Chandigarh. He died on 8.1.1964 leaving behind Teja Singh, Sadhu Singh, Karnail Singh and Bachan Kaur, sons and daughter respectively, as his legal representatives. Said Shiv Singh had died intestate and the house in R.S.A.No.897 of 2006 -2- question devolved upon the aforesaid legal representatives in equal shares. It was pleaded that in the year 1967 a family settlement had been arrived at between the legal heirs of Shiv Singh and as per the family settlement half share in the house had fallen to the share of plaintiffs/appellants and Smt.Bachan Kaur, and the remaining half share had gone to Sadhu Singh. Bachan Kaur also died and after her death the plaintiffs/appellants inherited her share in the house in dispute by virtue of Will dated 10.9.1975 executed by her in their favour. In that way the plaintiffs/appellants claimed themselves to be the co-sharers in the house to the extent of half share. The predecessor-in-interest of the present respondents, namely Sadhu Singh Gill, contested the suit and filed written statement by pleading that he was the absolute owner in possession of the suit property. He denied the locus of the plaintiffs/appellants to file the suit and contended that Smt. Bachan Kaur had given her share in the house in dispute to him in the family settlement dated 10.4.1975. It was further contended that Smt. Bachan Kaur had taken money in lieu of her share and relinquished all her rights in the property in his favour and that the alleged Will executed by Smt. Bachan Kaur was fictitious. The following issues were framed by the learned trial Court on 10.12.1990 :- 1. Whether the plaintiffs are co-owners of the house in dispute?OPP 2. What is the share of the parties in the house in dispute?OPP R.S.A.No.897 of 2006 -3- 3. Whether the plaintiffs are entitled for separate possession by partition of their share from the house in dispute?OPP 4. Whether the suit is not maintainable?OPD 5. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 6. Whether the suit is barred by principle of estoppel?OPD 7. Whether the property in dispute is not partitionable?OPD 8. Whether the plaintiffs have no locus standi to file the present suit?OPD 9. Whether the suit is barred by limitation?OPD 10. Relief. Thereafter, an application for amendment of the suit was filed on 21.7.1992 which was allowed. However, no other issue was framed. Subsequent thereto the case remained pending for recording of evidence of the plaintiffs/appellants for as long as 8 years after the date when the issues were framed. But the plaintiffs/appellants failed to produce their evidence forcing the learned trial Court to pass the order dated 23.10.1998 which is to the following effect :- “No PW is present despite last opportunity. From the perusal of the file it transpired that issues were framed on 10.12.1990 and since then, the file is pending for plaintiff evidence. This file has been received by way of transfer on 08.12.1997 and the same has been taken up on 09.12.1997 R.S.A.No.897 of 2006 -4- and on 09.12.1997 the file was adjourned to 06.04.1998, for plaintiff evidence. On 06.04.1998 no plaintiff evidence was present and the file was adjourned to 04.08.1998 for plaintiff evidence subject to costs Rs.200/-. On 04.08.98 no PW was present and the file was adjourned to 31.08.98 for plaintiff evidence through last opportunity at own responsibility. On 25.08.1998 no PW was present and the file was again adjourned to 29.08.1998 for plaintiff evidence. On 29.08.98 no PW was present and the file was adjourned to 15.10.98. On 15.10.98 the undersigned was on leave and the case was adjourned to proper orders for 23.10.98. Today no plaintiff evidence is present and costs of Rs.500/- is also not paid, as per order of dated 29.08.1998. Much time has been given to the plaintiff to conclude its evidence, but the plaintiff failed miserably to produce their evidence and the request of one more adjournment is declined being without any reason. Hence, the plaintiff evidence is closed by order. As there is no plaintiff evidence, there is no need to record the defendants evidence. Arguments heard. Vide my separate judgment of even date, the suit of the plaintiffs has been dismissed under order 17 Rule 3 of CPC for want of evidence. Parties are left to bear their own costs. Decree sheet be prepared and file be consigned to the record room after due compliance.” R.S.A.No.897 of 2006 -5- It is against this order that appeal was filed by the plaintiffs/appellants after about 7 months thereafter, which was dismissed on the point of limitation resulting in filing of the present regular second appeal. It was contended by the learned counsel for the appellants that great prejudice has been caused to them as they had moved an application for consolidation of two suits as both the suits pertained to the same very property and they were under the impression that the evidence which is being recorded in the suit filed by the defendants/respondents is likely to be read in the suit filed by them. It was pleaded that it was on account of the fact that the application for consolidation of the suits remained undecided before the learned trial Court. He further contended that even otherwise on 23.10.1998 the case had been fixed for proper orders by the learned trial Court, which was on leave on 15.10.1998, which is reflected in the zimni order of the said date duly reproduced in the grounds of appeal. It is pleaded that the trial Court passed the judgment on the same very date as a result of which the appellants were precluded from challenging the said order vide which their evidence was closed. He contended a cumulative appraisal of the evidence reveals that a great prejudice has been caused to them. On the other hand, learned counsel for the respondents contended that the conduct of the appellants/plaintiffs can be inferred from the record that they were not interested in participating in the proceedings and, therefore, no infirmity can be found in the order of the learned trial Court and the first appellate Court which dismissed R.S.A.No.897 of 2006 -6- the suit of the appellants/plaintiffs by taking into account their previous conduct. I have heard the learned counsel for the parties and have perused the records as also the impugned judgments. Concededly, the issues in this case were framed on 10.12.1990 and thereafter the case remained pending for recording of the evidence of the appellants/plaintiffs on all the dates which have been mentioned in the order dated 23.10.1998. A perusal of the aforesaid orders reveals that the plea of the appellants that they were lingering under the belief that the evidence produced in the suit filed by the respondents was also to be read in the present suit as well because they were under the impression that both the suits have been consolidated is not supported by any material. The orders are reproduced as under :- “Present : Proxy counsel. File taken up today as 10th March, 91 being Sunday. The lawyers are on strike. Now the case is adjourned to 20.5.1991 for evidence of the plaintiff. SJ 11.3.91 Present : None. File taken up today as 20th May, 91 has been declared holiday. This case stands adjourned to 23.8.91 for evidence of the plaintiff. SJ 18.5.91 Present : Proxy counsel. The lawyers are on strike. Application for R.S.A.No.897 of 2006 -7- bringing the legal heirs filed. Copy given. For reply case to come up on 21.10.1991. SJ 23.8.91 Present : Counsel for plaintiff. Proxy counsel for Sh.J.C.Sharma. Reply not filed. Proxy counsel requests for date. Now the case is adjourned to 3.12.91 for reply subject to payment of Rs.40/- as costs. SJ 21.10.91 Present : Counsel for parties. The learned counsel for the respondent has given the statement that he has no objection if the legal heirs of deceased Hardial Singh and Harpal Singh are allowed to be impleaded. Hence in view of this statement the legal representatives of Harpal Singh, Hardial Singh plaintiffs deceased be brought on record as prayed for in the applications dated 22.8.1991. To come up for amended plaint on 20.1.1992. SJ 3.12.1991 Present : Parties counsel. Amended plaint not filed. Request for date. Now the case is adjourned to 9.3.92 for filing amended plaint subject to payment of Rs.50/- as costs. SJ 20.1.92 Present : Proxy counsel. Due to lawyers strike the case is adjourned to 29.4.92 for the purpose already fixed. R.S.A.No.897 of 2006 -8- SJ 9.3.92 Present : Proxy counsel. Due to lawyers strike the case is adjourned to 21.7.92 for the purpose already fixed. SJ 29.4.92 Present : Parties counsel. Amended plaint filed. Copy given. For filing amended W.S. Case to come up on 7.9.92. Costs paid. SJ 21.7.92 Present : Parties counsel. Copy given to the amended plaint. Now the case is adjourned to 13.11.1992 for filing W.S. SJ 7.9.92 Present : Parties counsel. W.S. To the amended plaint not filed. Prayed for adjournment. Now the case is adjourned to 12.1.93 for filing amended W.S. Subject to payment of Rs.50/- as costs. SJIC 13.11.92 Present : Parties counsel. Counsel for the defendant has made a statement that he has adopted the written statement which is already filed by him prior to the amendment. Hence the written statement as already filed by defendant be read as amended written statement. No fresh issues arises as per parties. Now the case is adjourned to 7.5.1993 for evidence of the R.S.A.No.897 of 2006 -9- plaintiff. SJIC 12.1.93 Present : Proxy counsel. The Presiding officer has been transferred. The case is adjourned to 9.8.93 for proper orders. Reader/7.5.93 Present : Counsel for the parties. Ld. Presiding officer is on leave. To come up on 16.8.1993 for proper order. Reader. 9.8.1993 Present : Counsel for the parties. Case is fixed for proper order. As per orders of ld. District Judge, Chandigarh, this case stands transferred to the court of Shri Kamal Kant, HCS, Sub Judge II Class, Chandigarh, for further proceedings. The parties are directed to appear before the transferee court on 17.8.93. Ann:-16.8.93. Sub Judge Ist Class Chandigarh. Present : Counsel for the parties. Case received by transfer. P.O. Is on leave. For proper order case is adjourned to 1.9.93. Reader 17.8.93 Present : Counsel for parties. Case received by transfer. It be registered. Case is adjourned to 19.10.93 for PWs. SJ 1.9.93 R.S.A.No.897 of 2006 -10- Present : Counsel for parties. No PW is present. PWs be produced on 19.11.93 and for moving the application for transfer of the case as similar case is pending in the Court of Sh.Jagdip Jain SJIC, Chandigarh.. SJ 19.10.93 Present : As above. On request adjourned to 2.12.93 for filing application for transfer. SJ 19.11.93 Present : Pradeep Bedi counsel for applicants. Heard. In the circumstances the suit titled Balwant Singh etc. Vs. Sadhu Singh is withdrawn from the Court of Sh.Kamal Kant, Sub Judge 2nd Class, Chandigarh & entrusted for disposal in accordance with law to the Court of Sh.Jagdip Jain, sub Judge Ist Class, Chandigarh where the other suit is already pending. Be put up before him on the date already fixed in the case. Announced : 2.4.1994 District Judge,Chd. Copy of the order is forwarded to the Court of Sh.Kamal Kant, Sub Judge for sending the file along with the order to the court of Sh.Jagdip Jain, SJIC, Chandigarh. Supdt.District & Sessions Judge, Chandigarh. Statement of Sh.A.S.Virk, counsel for plaintiff I have moved an application before Ld.DSJ, R.S.A.No.897 of 2006 -11- Chandigarh for the clubbing of two cases concerning the above said parties. Since the matter is almost similar. The case is now fixed for 11.12.93. RO&AC SJ 2.12.93 Present : Counsel for the parties. Statement of Sh.A.S.Virk, Advocate counsel for the plaintiff recorded. As per the statement case is adjourned to 4.1.93 for awaiting of order of Ld.DSJ, Chandigarh. SJ 2.12.93 Present : Counsel for parties. For awaiting orders from the Ld.District & Sessions Judge, Chandigarh for 17.2.94. JMIC/SJ.4.1.94 Present : Counsel for parties. For awaiting orders to come up on 1.4.94. SJ.JMIC 17.2.94 Present : Counsel for parties. For awaiting further orders to come up on 2.5.94. SJ 2.4.94 Present : Counsel for the parties. Case received by transfer. It be registered, checked and indexed. To come up on 11.8.94 with the connected case. SJIC 2.5.94 R.S.A.No.897 of 2006 -12- Present : Counsel for parties. To come up on 26.11.94 alongwith connected case. SJIC 11.8.94 Present : Counsel for parties. To come up now on 4.3.95 with connected case. SJIC 26.11.94 Present : None. File taken up today as 4.3.1995 is declared holiday. Now to come up on 24.5.95 with connected case. Parties through counsel be informed accordingly. Long date granted due to heavy pendency of files. SJIC /2.3.1995 Present : Counsel for the parties. Taken up today as the request of both the counsels. Case is adjourned to 11.3.95 with the connected case. SJIC 6.3.95 Present : Counsel for the parties. To come up now on 15.3.95 with connected case. SJIC 11.3.95 Present : Counsel for the parties. Reply to application has been filed. Time sought for consideration. To come up now on 20.5.95 for consideration. Long date given due to heavy pendency of R.S.A.No.897 of 2006 -13- files. SJIC 15.3.95 Present : Counsel for the parties. At this stage both the counsels have requested for a short date. Therefore the case is adjourned to 20.3.1995 for consideration. SJIC/15.3.1995 Present : Sh.J.C.Sharma, counsel for applicant. Sh.PardeepBedi, counsel for plaintiff/respondent. The defendant Sadhu Singh is stated to have died on 14.4.1994. An application had been filed on behalf of the applicants stating that they should be impleaded as the legal representatives of the deceased defendants in the present suit. The respondent have controverted the aforesaid application filed by the applicants. The respondents admitted that Sh. Sadhu Singh had died. The respondents also admit the applicants to be the legal representatives of the deceased Sh.Sadhu Singh. However, the respondents point out that Sh.Sadhu Singh has also left behind two daughters namely Paramjit Kaur and Kamaldeep Kaur who were also entitled to be impleaded as legal representatives of Sh.Sadhu Singh. On this ground, the application is being opposed. I have heard the learned counsels for the applicants as well as for the respondents. As per the latest law, it is not the duty of the R.S.A.No.897 of 2006 -14- plaintiff only to implead the legal representatives. Now, in terms of the latest case law, it is for the legal representatives concerned themselves to move the court for getting themselves impleaded as legal representatives in the case. Therefore, the court is not bound to wait for the remaining legal representatives to be impleaded as a party. Even otherwise, the aforesaid remaining two legal representatives have given the affidavit to the court to the effect that they are not interested in becoming the legal representatives of the plaintiff. No other circumstances have been shown to the court which would justify the dismissal of the application in hand. In the circumstances of the case, the applicants are hereby allowed to be impleaded as the legal representatives of the deceased defendant Sh.Sadhu Singh. At this stage, the amended title has been filed. To come up on 27.4.1995 along with the connected case. SJIC /20.3.1995 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up now on 27.7.95 for evidence of the plaintiff to be produced at his own responsibility. This would be the last opportunity. Long date is given due to heavy pendency of files and intervening summer vacations. R.S.A.No.897 of 2006 -15- SJIC 27.4.1995 Present : Shri Pardeep Bedi, Advocate, counsel for the plaintiff. Shri J.C.Sharma, Advocate for the defendants. No PW is present today. A date is prayed for. An application for consolidating the suit with another suit has been filed. Copy given. Counsel for the plaintiff has made a statement that he shall produce his entire evidence at his own responsibility on the next date of hearing. In view of his statement, case is adjourned to 26.2.96 for evidence of the plaintiff to be produced at his own responsibility. This would be the last opportunity. Reply to the application for consolidating the suit be also filed on the date fixed. Long date is given at the request of both the counsels as another case between the parties has been adjourned for this date. SJIC 27.7.95 Present : Shri Pardeep Bedi, Advocate, counsel for plaintiff. Shri J.C.Sharma, Advocate counsel for the defendants. Sh. Pardeep Bedi, Advocate for plaintiff sought a date as he is to go out of station in connection with any urgent work. Accordingly the case is adjourned to 27.4.96 for evidence of the plaintiff as per previous order. Reply to the application for consolidating the suit be also filed on the date fixed. SJIC 26.2.96 Present : None. R.S.A.No.897 of 2006 -16- Taken up today as 27.4.96 is declared as an holiday. To come up on 24.7.96 for evidence of the plaintiff. Reply to the application be also filed for the date fixed. Parties through counsel be informed at once. Long date is given due to intervening summer vacations. SJIC 26.4.96 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 24.9.96 for evidence of the plaintiff. Reply to the application be also filed for the date fixed. SJIC 24.7.96 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 23.11.96 for evidence of the plaintiff. SJIC 24.9.96 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 28.1.97 for evidence of the plaintiff. Reply to application be also filed for the date fixed. SJIC 23.11.96 Present : Counsel for the parties. Reply to the application has been filed. Copy given. To come up on 29.1.97 for arguments as well as for evidence of the plaintiff. SJIC 28.1.97 Present : Counsel for the parties. R.S.A.No.897 of 2006 -17- Time sought for arguments on application. To come up on 1.3.97 for arguments on application as well as for evidence of the plaintiff. SJIC 29.1.97 Present : None. Case taken up today as I shall be away to Delhi on 1.3.97 in connection with Training there. To come up now on 2.4.97 for the purpose already fixed. Parties through their counsel be informed at once. SJIC 25.2.97 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 2.6.97 for evidence of the plaintiff as well as for arguments on application. SJIC 2.4.97 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 29.7.97 for evidence of the plaintiff. SJIC 2.6.97 Present : Counsel for the parties. No PW is present today. A date is prayed for. To come up on 11.9.97 for evidence of the plaintiff. Reply to application dated 27.7.96 be also filed for the date fixed. SJIC 29.7.97 Present : Counsel for the parties. R.S.A.No.897 of 2006 -18- Ld.P.O. Has since been transferred. To come up on 7.10.97 for proper order. Reader 11.9.97 Present : Counsel for the parties. At the request of counsel for the parties case is adjourned to 31.10.97 for further proceedings. SJIC 7.10.97 Present : None. Case taken up today as I shall be on leave on 31.10.97. To come up on 29.11.97 for further proceedings. Parties through counsel be informed at once. SJ 30.10.97 Present : Counsel for the parties. Now to come up on 1.12.97 for further proceedings. SJ 29.11.97 Present : Counsel for the parties. At this stage, it has come to my notice that the value of this suit is more than the jurisdiction of this Court. Hence, this case is ordered to be sent before the learned District Judge, Chandigarh for transferring the same to the court having competent jurisdiction. The counsel for the parties is directed to appear before the ld.District Judge, Chandigarh on 8.12.97 at sharp 10.00 AM. Ahlmad is directed to send the file complete in all respects immediately. R.S.A.No.897 of 2006 -19- Announced Sub Judge IInd Class, Dt.1.12.97 Chandigarh. Present : Sh.Pardeep Bedi, counsel for plaintiff. Sh.J.C.Sharma, counsel for defendant. Reference perused and accepted. The present suit is hereby withdrawn from the Court of Sh.A.K.Bishnoi, Sub Judge, Chandigarh and the same is entrusted to the Court of Sh.K.C. Garg, Sub Judge Ist Class, Chandigarh for disposal in accordance with law. File be put up before that Court on 9.12.1997. The learned counsel for the parties are directed to appear before that Court on the date fixed. Announced : District Judge, December 8, 1997 Chandigarh. Present : Counsel for the parties. As per the order of ld. District & Sessions Judge, Chandigarh, file received by transfer from the court of Sh.A.K.Bishnoi, Sub Judge, Chandigarh. It be checked and registered. Now, the case is adjourned to 6.4.98 for plaintiff evidence. SJIC 9.12.97 Present : Counsel for the parties. No plaintiff evidence is present. Request for adjournment, which is allowed, subject to cost Rs.200/- and adjourned to 4.8.98 for plaintiff evidence. SJIC 6.4.98 Present : Counsel for the parties. R.S.A.No.897 of 2006 -20- No PW is present, cost Rs.200/- also not paid. From the perusal of the file it transpired that issues were framed on 10.12.90 till then the case is pending for plaintiff evidence. No witness has been examined in this case. Cost demanded by counsel for the def. But the same has not been produced. At the earnest request of the counsel for the plaintiff adjourned to 25.8.98 for plaintiff evidence through last opportunity on own responsibility. SJIC 4.8.98 Present : None. Advocates are on strike today. As such the case is adjourned to 29.8.98 for plaintiff evidence through last opportunity. SJIC 25.8.98 Present : Counsel for the parties. No PW is present despite last opportunity. No valid reason has been given for not producing the plaintiff evidence. On request the case is adjourned to 15.10.98 for plaintiff evidence, subject to cost Rs.500/-, last opportunity is given. SJIC 29.8.98 Present : As before. The Ld. Presiding officer is on leave today. For proper order to come up on 23.10.98. Reader/ 15.10.98” A perusal of the above orders show that at no point of time R.S.A.No.897 of 2006 -21- did they gave any statement from where it could be deducted that such an impression was being carried by the learned counsel for the appellants. Rather, all throughout he had been asking for adjournments on the ground that no evidence was present. They had even not paid the costs to the respondents leaving the Court with no other option but to proceed against them for the non-payment of costs. However, the Court considering the circumstances in their entirety while passing the order dated 23.10.1998 dismissed the suit of the appellants under order 17 Rule 3 C.P.C. The provisions of Order 17 Rule 3 CPC are extracted as under :- “Court may proceed notwithstanding either party fails to produce evidence, etc.-- Where any party to a suit to whom time has been granted fails to