Kuldeep Singh vs Jasbir Singh and Others

Jaswant Singh, J.—Plaintiff is in revision under Article 227 of the Constitution assailing the order dated 30.1.2014 passed by the learned Additional Civil Judge (Senior Division) Fatehgarh Sahib whereby the evidence of the plaintiff has been closed by order.

The dispute is between family members. Plaintiff has sought cancellation of a sale deed dated 11.6.2008 executed by his brother Inderjit Singh-defendant No. 3 on the basis of an alleged Power of Attorney of the plaintiff in favour of defendants 1 and 2 who are their nephews. Challenge is also to the sale deed dated 25.3.2008 executed by the plaintiff in favour of his nephew-defendant No. 4 Harpal Singh. Consequential relief of permanent injunction has been prayed seeking to restrain the defendants from alienating the suit land.

Learned counsel for the petitioner has argued that only cross examination of the plaintiff/PW-1 remains to be concluded and therefore, prays for one opportunity since there was no fault of the plaintiff as on the earlier dates the counsel for the defendants had not cross examined the other present witnesses as well.

On the other hand, learned counsel for the caveators/defendants has argued that the issues were framed on 15.12.2010. Plaintiffs evidence started on 29.3.2011 and he availed 13 effective opportunities before his evidence was closed by order. It included two prior effective opportunities when the plaintiff himself was not present for his cross examination before the same was closed on the third opportunity. Thus, it is submitted that in the facts of the case there is no perversity in the impugned order and no equity warranting indulgence by this Court.

Having heard learned counsel for the parties and minutely perusing the paper book, this Court finds no merit in the present revision petition.

At the time of hearing a compilation of zimni orders was shown by the learned counsel for the caveators/defendants whereby it is evident that the plaintiff has availed 13 effective opportunities before impugned order closing his evidence was passed. It also cannot be disputed that on two earlier occasions after the examination-in-chief by way of affidavit was submitted, the plaintiff had abstained from being present for his cross examination. It is on the third date of absence that the learned Trial Court was constrained to close the evidence by order. Hon''ble the Supreme Court in Shiv Cotex v. Pirgun Auto Plast Private Limited and others, 2011 (9) SCC 678 has recently held that for the parties to avail more than three opportunities, as provided in the Code of Civil Procedure, has to be for not only sufficient cause but justifiable cause. Adjournments cannot be sought for a mere asking as they impede the free flow of leading of evidence and early conclusion of the trial. In the present case, no reasons, whatsoever, have been forthcoming showing any sufficient cause much less justifiable cause for not being present earlier for concluding the cross examination of the plaintiff and the entire evidence. Courts are not meant to come to the rescue of the litigants who are culpably negligent in pursuing their cause.

In view of the above, no case for interfering with the impugned order in exercise of revisional jurisdiction of this Court under Article 227 of the Constitution is made out.

Dismissed.