RSA No. 1437 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1437 of 2009 Date of Decision: 26.08.2009 Devi Ram son of Late Sh. Tek Chand son of Sh. Lekhi Ram, r/o village Gillaur Khurd, Tehsil and District Rohtak, now at village Dhanana Adlapur, District Rohtak. ... Appellant Versus Krishan son of Sh. Dhaja Ram r/o village and post office Ghilaur Khurd, Tehsil and District Rohtak. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Surinder Gandhi, Advocate, for the appellant. Mr. Pradeep Prakash Chahar, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 25.09.07, rendered by the Court of Civil Judge (Senior Division), Rohtak, vide which, it closed the evidence of the plaintiff, and dismissed the suit, and the judgement and decree dated 17.01.09, rendered by the Court of Additional District Judge, Rohtak, vide which, it dismissed the appeal. RSA No. 1437 of 2009 2 2. The plaintiff claimed that he was an absolute owner of the land, in dispute, measuring 6 kanals 10 marlas, as fully detailed in the plaint. The defendant illegally and unauthorizedly encroached upon some portion of the land. An application for demarcation was moved. The property was demarcated, in the presence of the parties. It was found that the defendant, was in illegal possession of 11 marlas (3 x 33 ft.) of the suit land, on the northern-western side. The defendant, was many a time asked, to vacate encroachment, but to no avail. Ultimately, a suit for possession, was filed. 3. The defendant, put in appearance, and filed written statement, wherein he denied the averments, contained in the plaint. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the defendant has encroached upon a portion of the suit land detailed in para No. 1 of the plaint? OPP (ii) If issue No. 1 is proved in favour of the plaintiff whether plaintiff is entitled to get the vacant possession of the suit land? OPP (iii) Relief. 5. The plaintiff was granted opportunity to lead evidence, but he failed to do so. Accordingly, his evidence was closed vide order dated 25.09.07 and the suit was dismissed under Order 17, Rule 3 of the Code of Civil Procedure. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed by the Court of RSA No. 1437 of 2009 3 Additional District Judge, Rohtak, vide judgement and decree dated 17.01.09. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the evidence and documents, on record, carefully. 9. The following substantial substantial question of law, arises in this appeal, for determination of this Court:- Whether the Courts below recorded perverse findings that sufficient opportunity was granted to the plaintiff to lead his evidence, against the facts and circumstances on record, resulting into the dismissal of the suit? 10. The Counsel for the appellant, submitted that the plaintiff/appellant, was condemned unheard. He further submitted that only four effective opportunities, were granted to the appellant, to lead and conclude his evidence, but he could only file his affidavit in examination-in-chief, and when the case was fixed for cross- examination his evidence was closed. He further submitted that with a view to impart substantial justice, the Courts below, were required to grant reasonable opportunity to the plaintiff to produce and conclude his evidence. He further submitted that the judgements and decrees, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that eight effective opportunities were granted to the plaintiff to lead and conclude his evidence, but he failed to do so. He further RSA No. 1437 of 2009 4 submitted that, under these circumstances, no alternative was left with the trial Court, than to close the evidence. He further submitted that the judgements and decrees, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be accepted, for the reasons to be recorded, hereinafter. It is evident from the record that on 28.09.04, four witnesses of the plaintiff were present, but the defendant was not present. He was proceeded against exparte. All the four witnesses of the plaintiff were examined ex-parte. The plaintiff closed the evidence and the case was fixed for consideration for 17.11.04. On 17.11.04, the case was adjourned to 04.12.04 for consideration. On 04.12.04, an application was filed by the defendant, for setting aside the exparte proceedings order, and joining the proceedings. The case was adjourned to 05.01.05 for filing reply. Ultimately, on 18.10.05, the ex- parte proceedings order was set aside and the case was adjourned to 14.02.06, for the evidence of the plaintiff and for payment of costs imposed upon the defendant, for setting aside the exparte proceedings order. On 14.02.06, the casts were not paid, and the defendant sought more time, and, therefore, the case was fixed for 16.05.06 for further proceedings. On 16.05.06, the defendant sought more time for the payment of costs. The case was adjourned to 17.08.06. On 17.08.06, the costs imposed upon the defendant were paid, and the case was adjourned to 18.10.06, for evidence of the plaintiff. On 18.10.06, no RSA No. 1437 of 2009 5 witness of the plaintiff was present for cross-examination and the case was adjourned to 05.01.07. Thereafter, the case was taken up on 04.01.07, as 05.01.07 was declared holiday, and it was adjourned to 07.04.07, for the evidence of the plaintiff. On 07.04.07, the case was adjourned to 02.06.07, for the evidence of the plaintiff. On 02.06.07, the case was received by transfer by the Court of Civil Judge (Senior Division), Rohtak, and it was adjourned to 25.09.07, for the evidence of the plaintiff. The case was taken up on 10.09.07, as the Presiding Officer, was to proceed on earned leave from 11.09.07 to 29.09.07. It was adjourned to 18.12.07 for the evidence of the plaintiff. Again the case was taken up on 25.09.07, as the Presiding Officer, did not intend to proceed on leave, and, on that day, the evidence of the plaintiff was closed. The perusal of the aforesaid zimni orders clearly goes to show that it was not that the plaintiff was only, responsible for not producing and concluding his evidence. The Presiding Officer of the Court, was sometime on leave or sometime the date fixed for evidence of the plaintiff, was declared as holiday. It is not known when the case had already been adjourned to 18.12.07, on 10.09.07, for the evidence of the plaintiff, how it was again taken up on 25.09.07, for the evidence of the plaintiff. The Court of Civil Judge (Senior Division), Rohtak, was required to take up the case on 18.12.07, and if on that day, the evidence had not been produced by the plaintiff, it was competent to pass an order of closing the evidence of the plaintiff. It, thus, appears, from the aforesaid zimni orders, that sufficient opportunity was not granted to the plaintiff, to lead and conclude his evidence. This does RSA No. 1437 of 2009 6 not mean that the plaintiff was not at fault to some extent. The principle of law, laid down, in State of Punjab Vs. Shamlal Murari (AIR 1976 S.C. 1177), was to the effect that, the procedure is, in the ultimate, the hand-maid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. A procedural rule, therefore, has to be liberally construed, and care must be taken, that so strict an interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provision, may result in stifling the material evidence of a party, even if, for adequate reasons, which may be beyond his control. We must always remember that procedural law is not to be a tyrant, but a servant, not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid, and not mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected without injury to a just disposal of the case, the Court should not enthrone a regulatory requirement into a dominant desideratum. After all, the Courts are to do justice, not to wreck this end product on technicalities. It is evident from the afore-discussed position, that manifest injustice, stood occasioned, to the appellant, as the lis was decided not on merit, but by default. Therefore, in my opinion, in the larger interests of justice, it is a fit case, in which, reasonable opportunity, is required to be granted, to the appellant/plaintiff, to lead his evidence, though the opposite party, can be compensated, by way of costs. The substantial question of law, depicted above, is answered, in favour of the appellant. RSA No. 1437 of 2009 7 13. For the reasons recorded above, the appeal is accepted with no order as to costs. The judgements and decrees of the Courts below, are set aside. The trial Court shall restore the suit at its original number. The plaintiff (now appellant), shall be granted two effective opportunities, by the trial Court, which shall commence, after 18.09.09. It shall be the responsibility of the plaintiff (now appellant), to produce the entire evidence on two dates, and, in case, he failed to do so, then the trial Court, shall be at liberty to close the same. After the evidence is closed by the plaintiff, reasonable opportunity shall be given to the defendant (now respondent), to lead his evidence, and thereafter, the case, shall be decided, afresh, in accordance with the provisions of law. However, the appellant, is burdened with costs of Rs. 3,000/-, for causing somewhat delay, in the disposal of the case. The payment of costs of Rs. 3,000/-, shall be a condition precedent, to the leading of evidence. The parties, are directed to appear, in the trial Court, on 18.09.2009, at 10.00 AM. 26.08.2009 (SHAM SUNDER) Amodh JUDGE