Ram Piari vs Tek Chand

R.L. Anand, J.—Smt. Ram Piari widow of Ram Pal, resident of Ambala City has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 8.12.1984 passed by the Court of Shri R.P. Bajaj, Additional District Judge, Ambala, who affirmed the judgment and decree dated 18.7.1983 passed by the Court of Sub Judge IInd Class, Ambala City and dismissed the appeal of the plaintiffappellant.

The brief facts of the case are that the appellant Ram Piari filed a suit for declaration to the effect that the judgment and decree dated 12.8.1980 passed by the Court of Sub Judge Ist Class, Ambala City alleged to have been passed on the alleged compromise dated 12.8.1980 in Civil Suit No. 528 of 1978 decided on 12.8.1980 is illegal, null and avoid and not binding upon her as the same decree has been obtained by the defendantrespondents by fraud, misrepresentation of facts and undue influence.

The suit was contested by defendant No. 1 Tek Chand who justified the decree dated 12.8.1980 on the various pleas as stated in the written statement and those pleas are not necessary to be recapitulated here as the suit and the appeal of the appellant had been dismissed on a different score. Suffice to mention as is evident from the record of the trial Court that on the pleadings of the parties issues were struck by the trial Court on 31.8.1982 and the case was adjourned for the evidence of plaintiff Ram Piari on 24.11.1982. On that day, neither the plaintiff was present nor any of her witness was present. So much so, the plaintiff did not even file the process fee. As required under the law and the procedure, the plaintiff was supposed to give her statement at the first instance but she opted not to appear in the witness box and still she was accommodated and was ordered to bring her evidence on 8.3.1993 with the directions to deposit the process fee and diet money in case she wants the assistance of the Court for the summoning of the witnesses. The record of the trial Court further shows that plaintiff did not choose either to file process fee or diet money and consequently no witness was summoned nor any witness was present on the date fixed and adjournment was requested on behalf of the plaintiff, which was opposed by the opposite party. One more final opportunity was given to the plaintiff to produce her entire evidence on 18.7.1983 and the trial Court clearly stipulated in the order dated 8.3.1983 that in case the plaintiff did not bring the evidence, her evidence shall stand closed by virtue of that order. The trial Court also granted facility of dasti summons to the plaintiff after filing the process fee within three days. Even on 18.7.1983 no evidence of the plaintiff was present, so much also even the plaintiff was not present. Her counsel Shri Sucha Singh was present. He never brought to the notice of the Court nor it was the case of the plaintiff's counsel that his client was confined to bed. Keeping in view the undertaking given by the appellant on 8.3.1983, the trial Court vide his considered order reproduced as under :

``No PW present again nor has any been summoned. Adjournment is again requested but the same is vehemently opposed by Shri Hari Kishan Advocate. This case was previously posted for 8.3.1983. I had made it abundantly clear on that date of hearing that the plaintiff shall not be granted any further opportunity to lead his evidence and that his evidence shall come to a close by virtue of this order on this date of hearing. I had intentionally opened all gates for smooth service of the witnesses by allowing the facility of dasti summons and repeated summons on filing of PF/DM. The plaintiff has been careless to the extreme and has not complied with the orders of the previous date. So much so that the plaintiff has not even come forward to depose on behalf of her case today. I do not find any grounds to adjourn this case any further for recording PWs. In fact the evidence of the plaintiff comes to a close by virtue of my order dated 8.3.1983. There is no evidence on file in favour of the case set up by the plaintiff and as such the suit stands dismissed for want of evidence. Let the file be consigned to the recordroom accordingly."

closed the evidence of the plaintiffappellant and since the plaintiff failed to discharge the onus of the issues, the burden of which was placed upon her, dismissed the suit.

Aggrieved by the judgment and decree of the trial Court, Smt. Ram Piari filed first appeal which was also dismissed by the first Appellate Court vide impugned judgment and decree dated 8.12.1984 and in this regard it will be useful for me to refer to the paras Nos. 7, 8 and 9 of the judgment. Relying upon a decision of this Court reported as 1975 RLR 471, Gulla Singh v. Gudit Singh the first Appellate Court came to the conclusion that trial Court Judge had no option but to proceed with the case as the appellant had failed to make out a sufficient cause for the grant of furtheradjournment. Still aggrieved by the judgment and decree of the Courts below the present Regular Second Appeal.

I have heard Shri Hemant Kumar, Advocate, on behalf of the appellant and Ms. Hemani Sarin, Advocate, on behalf of the respondents and with their assistance have gone through the record of this case.

No doubt the dispensation of fair justice is the primary cause of law Courts and due to the nonperformance of the technicalities of procedure and law one litigant should not be nonsuited but equally is the law that it helps a vigilant litigant who helps the law Courts in the advancement and dispensation of justice and not to a negligent litigant like the present one who even did not care to summon her witness in spite of the fact that three clear and positive adjournments were granted and her suit remained pending for two years approximately. The issues in this case were struck as back as on 31.8.1982, while order dated 18.7.1983 by which the evidence of the plaintiff was closed was passed after about 11 months. If during the course of 11 months, the plaintiff has not cared to bring her witnesses. To such a litigant the law would not come to her rescue. So much so, even the plaintiff did not appear in the witness box on any of the hearing after the framing of issues nor there is any evidence to the effect that she was confined to bed on the relevant date i.e. 18.7.1983. To such a person a long rope of adjournment cannot be given specially in view of the amendment added to Rule 1 of Order 17 subrule (3). The amendment of Punjab High Court to this Rule 1 of Order 17 clearly lays down that where sufficient cause is not show for the grant of adjournment under subRule 1, the Court shall proceed with the case forthwith. The reading of the above would show that if on the facts and circumstances of a case the trial Court comes to its considered view that party to the suit is negligent and has failed to show sufficient cause for further adjournment, the request of the defaulting litigant cannot be encouraged and had to be dealt with sternly. There is no illegality in the order dated 18.7.1983 passed by the trial Court as rightly concluded by the first Appellate Court and for this reason this court is not to interfere in the judgment and decree passed by the trial Court and first Appellate Court.

Mr. Hemant Kumar, learned counsel for the appellant had tried to win the sympathy of this Court by inviting the attention to the previous chain of litigation between his client and that of the contesting respondent. He submitted that earlier civil and criminal litigations were pending and therefore, there was hardly any occasion for the plaintiff to enter into any compromise with the defendant and that the decree in challenge in the suit could not be passed against the plaintiff. The submission raised by the learned counsel for the appellant firstly is beyond the scope of adjudication of the controversy involved in the present suit. Secondly, this argument to my mind can go against the appellant who at one point of time was at dagger's drawn with the defendants but ultimately chose to enter into a compromise and resultantly the decree dated 12.8.1980 was passed. At no point of time Ram Piari has proceeded against her lawyer who represented her in that suit. Need not to mention that the suit out of which the present decree has arisen was filed on 16.11.1981 after a period of 15 months from the passing of the judgment and decree dated 12.8.1980. If the plaintiff had opted not to persue her litigation diligently, the law Courts cannot come to her rescue. Be that as it may, I do not see any merit in the present appeal which is hereby dismissed leaving the parties to bear their own costs.