Sharwan Kumar vs Mukesh Kumar

D.S. Tewatia, J.—This order shall dispose of two revision petitions CR No. 1984/78 and 1985/78 as they are directed against two identical orders dated 27th September, 1978, passed in two civil suits brought by Mukesh Kumar, respondent, by the Senior Subordinate Judge, Karnal whereby adjournment sought by the petitioner-defendant for production of his evidence was declined and the cases were adjourned to 10th October, 1978, for compromise with the further observations that if any compromise was not made on that date, the statement of the defendant would be recorded on that date. From the perusal of the judgment it is clear that the latter direction for the examination of the defendant in the event of the failure of a compromise was for the reason that the counsel for the defendant had wanted to examine the defendant only.

On 23rd March, 1973 the plaintiff--respondent instituted a suit No. 159 of 1973 for possession of a shop and recovery of Rs. 1800/- as damages for use and occupation He instituted another suit No. 561 of 1975 on 5th December, 1975 for recovery of Rs. 6400/- on account of damages for use and occupation of that very shop, Both these suits proceeded together.

The learned counsel for the petitioner has argued that once the court did not proceed forthwith the decision of the suit and adjourned it to another date, then it could not have, while exercising powers under Order 17, rule 3, closed the production of the evidence of the party. In support of his submission, he has placed reliance on my own decision in Basant Kaur and another v. Smt. Gurdyalo (1975) 77 P.L.R. 772, and another decision of this Court in State of Punjab v. Radha Kishan (1978) 80 P.L.R. 454. The view taken in these decisions is that the provisions of Order 17, rule 3 are penal in nature and that once the Court adjourns the case to another date, then it would be desirable that the party concerned is allowed to produce its evidence on the adjourned date There cannot be any dispute with the proposition of law as laid down in the aforesaid two decisions but the view that was taken in those decisions was in the light of the facts of those cases. The principal case is the one which emanated on 23rd March, 1973. The trial Court had earlier similarly closed the evidence of the defendant in that case in the year 1974. That order was challenged in this Court and this Court directed the defendant the petitioner herein to produce his evidence within one month on his own responsibility.

The cases lignered on sometimes for the compromise and sometimes for the production of the evidence of the defendant The learned trial Court observed finally that on the previous peshi, the defendant had takes upon himself the responsibility for getting his witnesses served. That was not done and the adjournment was requested.

In the present case, the impugned order does not smack of penal nature at all. In fact, it appears that the defendant is interested in prolonging the matter. The defendant is a tenant who after the death of his father is said to have inherited the tenancy. The dispute is as to whether It was a case of statutory or contractual tenancy. In a dispute between a tenant and a landlord the landlord at times even when sure of his ground goes almost out of his way to secure the premises as a result of compromise even if there is delay. The tenant petitioner appears to be playing dilatory tactics : sometimes by delaying the compromise and at other times by securing adjournment for the production of evidence. The trial Court rightly put an end to these dilatory tactics and no fault can be found with the impugned orders. The revision petitions are dismissed with costs The parties are directed to appear before the trial Court on 12th February, 1979.