Keshab Ram vs Puran Chand and Others

Khanna, J.—This revision filed by Keshab Ram defendant (also described on the record as Keshab Chander) is directed against the order of learned Subordinate Judge 1st Class, Amritsar, refusing to grant further adjournment of the case for the evidence of the defendants.

The brief facts of this case are that Puran Chand of Amritsar brought on 24th March, 1960 a suit for dissolution of partnership and rendition of accounts against Megh Singh defendant No. 1, Keshab Ram defendant No. 2 and Rattan Chand defendant No. 3. All the three defendants are residents of Mandi in Himachal Pradesh. Megh Singh defendant No. 1 in his written statement expressed his readiness to render accounts but averred that the Court at Amritsar had no jurisdiction to try the suit. The suit was resisted by Keshab Ram and Rattan Chand defendants on a number of grounds. Two preliminary issues were framed in the case and were decided in plaintiff''s favour on 28th March, 1961. Thereafter, issues were framed on merits and the case was fixed for evidence of the witnesses of the plaintiff on 11th October, 1962. On the last mentioned date summonses of the witnesses of the plaintiff at Patiala and Mandi were found not to have been received. The case was thereupon adjourned to 2nd November, 1962. On that date again the summonses were not received and the case was adjourned to 5th December. 1962. The Presiding Officer of the Court was on leave on that date. After that the case came up for hearing on 11th January, 1963 when one witness of the plaintiff was examined. Case was thereafter adjourned to 25th January, 1963 when another witness of the plaintiff was examined. The case was then adjourned to 5th March, 1963 when one more witness of the plaintiff was examined. After that the case was adjourned to 4th April, 1963 but on that day it was found that the witnesses of the plaintiff had not been served. Case was then adjourned to 8th May, l963. On that date it was represented that some of the account-books of the partners were lying in the Court of the Subordinate Judge, Mandi (Himachal Pradesh) in another suit between these parties. The parties then undertook to apply for return of those account-books to the Subordinate Judge, Mandi, and to produce them in the trial Court. The plaintiff, accordingly, requested for adjournment and the case was adjourned to 28th May, 1963. On the last mentioned date a copy of an order of the Additional Subordinate Judge, Mandi, was produced refusing to return the account books to the parties. The case was then adjourned to 18th and 19th July, 1963, and it was directed that the Ahmed of the Court, of the Additional Subordinate Judge, Mandi, be summoned along with the relevant account-books. When the case came up for hearing on 18th July, 1963, the parties took an adjournment on the ground that they were negotiating a compromise. The case was adjourned on that ground first to 31st July, 1963 and thereafter to 7th August, 1963. On 7th August, 1963 it was reported that there had been no compromise between the parties. The case was then adjourned to 8th August, 1963 on the ground that it not was possible to proceed further without the account books filed by the parties in the Court of the Subordinate Judge, Mandi. On 8th August, 1963 the case was adjourned to 13th August, 1963. As the books had not meanwhile been received, the case was adjourned to 16th September, 1963. On the last mentioned date the Clerk of the Court of the Additional Subordinate Judge, Mandi, was present with some account books but it was found that he had not brought with him some other account books which had been filed by Megh Singh defendant. The case was thereafter adjourned to 10th October, 1963. The parties were also directed to appear on an interim date for compromise and 23rd September, 1963 was fixed for that purpose. On 23rd September, 1963 it was reported that there had been no compromise. The case was, accordingly, adjourned to the date fixed viz: 10th October, 1963 for remaining evidence of the parties. On 10th October, 1963 Kashmir Singh, Clerk to the Court of the Additional Subordinate Judge, Mandi, brought with him the summoned account books. Thereupon, the evidence on behalf of the plaintiff was recorded and was closed. The case was then adjourned to the following day. On 11th October, 1963 the counsel for defendant No. 1 made a statement that he had no evidence to produce. Request was then made on behalf of defendants 2 and 3 for adjournment. It was found that no evidence had been summoned on behalf of those defendants for 10th October, 1963. Keshab Chancier then appeared as his own witness. The Court thereafter adjourned the case to 28th October, 1963 on the condition that the defendants would close their evidence at their own responsibility. On 28th October, 1963 Rattan Chand defendant was examined as a witness. Request was then made on behalf of the defendants for adjournment for examining their other witnesses who were not present but the learned Subordinate Judge declined to accede to this request. Defendant No. 2 has now come up in revision if against this order.

I have heard the learned counsel for the parties and am of the view that one further opportunity should have been granted to the defendants for the production of their remaining evidence. It would appear that the defendants 2 and 3 had summoned Megh Singh defendant No. 1 as well as the Clerk of the Court of the Additional Subordinate Judge. Mandi, for 28th October. 1963. The report about Megh Singh was that he had refused to accept summonses and the same were consequently affixed at his place of residence. A communication was also addressed by the Court below for the presence of the Clerk of the Court of the Additional Subordinate Judge, Mandi, with the relevant records in respect of which Megh Singh was to be examined. The defendant-petitioner, in my view, cannot be held responsible for the non-appearance of those two witnesses on 28th October, 1963. It was no fault of the defendant petitioner that Megh Singh refused to accept the summonses which were issued to him and the defendant-petitioner, in my opinion, cannot be penalised on that account. It has to be borne in mind in this connection that while it is the function of the Court to see that cases are disposed of expeditiously and no party is allowed to procrastinate the course of proceedings by dilatory tactics, at the same time the principle is not to be lost sight of that a party has a reasonably fair opportunity to bring on record all the material which would prove its case. The resume of facts given above would go to show that a large number of adjournments had been given to the plaintiff in connection with the production of his evidence and, in the circumstances, it seemed fair that the request for adjournments on behalf of the defendants should have been acceded to. It is no doubt true that the defendant-petitioner did not summon his witnesses for 10th October, 1963 but for that remissness the other party could have been compensated with costs. Mr. Krishan Lal Kapur, learned counsel for the petitioner, has given an undertaking at the hearing of the revision that the defendant-petitioner, if given Dasti summonses for the above-mentioned two witnesses, would get service effected. In the circumstances it appears to be just and proper that one further opportunity should be given to the defendant-petitioner for the production of the above-mentioned two witnesses on payment of Rs. 50/- as costs. Dasti summonses in accordance with the undertaking given on behalf of the defendant-petitioner should consequently be handed over to him for the two witnesses in question.

The parties are directed to appear in the Court below on 16th March, 1964. The Court below would thereafter fix a sufficiently long date so that the service on the two witnesses may be effected. An intermediate date may also be fixed to ensure service for the date fixed for recording of evidence. As it is an old suit, its disposal may be expedited after the date fixed for the recording of the evidence. I order accordingly. The parties are left to bear their own costs of the revision.