State of Punjab vs Radha Kishan

Gurnam Singh, J.—This second appeal against the order of the learned Additional District Judge, Amritsar, has been tiled by the State of Punjab, alleging that the learned Additional District Judge wrongly remanded the case and also could not frame an additional issue.

Briefly stated the facts of the case are that Radha Kishan Plaintiff respondent had filed the suit against the State of Punjab, for a decree, holding that he continues to be a Deputy Superintendent of Police entitled to his pay, powers and privileges of that rank as before 6th September 1968 and is also entitled to the other consequential benefits The contention of the plaintiff-respondent was that according to his matriculation certificate, his date of birth was 10th February 1914, that he had joined the Punjab Police in Amritsar district on 12th March 1931 that he was discharged on 19th December 1931, that be rejoined the service on 1st March 1932 but his service record was prepared on the basis of his date of birth as 9th September 1910. Further according to the plaintiff-respondent, he applied for the correction of his date of birth but no reply was received and was made to retire. The State of Punjab contested the suit and pleaded that the suit is not justiciable in a civil Court that the suit was time barred, that no notice u/s 80, Civil Procedure Code, was given and that the date of birth of the plaintiff respondent was correctly recorded in his service record.

The trial Sub-Judge dismissed the suit of the plaintiff. Radha Kishan plaintiff-respondent filed an appeal, which was heard by the learned Additional District Judge, Amritsar. The learned Additional District Judge, Amritsar held that the order of the trial Court for adjourning the case from 16th May 1972 to 27th May 1972 was legally not correct and remanded the case under Order 41 Rule 23, Civil Procedure Code, to the trial Court, for proceeding with the same in accordance with law from the stage it was on 16th May 1972. The learned Additional District Judge also framed the following additional issue :

Whether the notice served on the defendant-respondent was valid ? O.P. Appellant

and also observed that the State of Punjab shall be bound by the statement made by the Government Pleader admitting the factum of notice, Exhibit p. 1. It was further directed that the trial Court shall only decide the matter of its validity.

As would appear from the record of the case, the plaintiffs evidence was closed on 15th January 1972 and thereafter the defendant was called upon to lead evidence on 17th March 1972, on 17th March 1972 no evidence was produced and the case was adjourned to 26th April 1972. On 26th April 1972 the case was again adjourned to 16th May 1972 as no evidence was present. On 6th May 1972 the trial court declined further adjournment to the defendant and posted the case for arguments for 27th May 1972, By refusing further adjournment in the case, the trial Court proceeded under Order 17 Rule 3, Civil Procedure Code, which reads as under:--

Where any party to a suit to whom time been has granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default............proceed to decide the suit forthwith...................

The provisions of order 17, rule 3, CPC are

penal in character and the Court is required to decide the suit forth with if suit is decided forthwith no fault can be found with the order but if the Court does not proceed to decide the case forthwith and adjourns it, it shall have to allow another opportunity to the defaulting party for its evidence on the adjourned date. This has been so held in Smt. Dahri and others v. Munshi (1967) 61 P.L.R. 149. It was in view of this authority that the learned Additional Judge remanded the case to the trial court for proceeding with the same in accordance with law from the stage it was on May 16, 1972. The learned Additional Advocate General appearing for the appellant could not point out any defect in the order so passed.

It appears that during the argument in the first appellate Court the court fount Notice Exhibit arguments in the first Appellate which was admitted by the Government pleader appearing for the defendant State It was on account of that the additional issue was formed by the learned additional District judge and it was ordered that the validity of the notice should be decided. In the circumstances of the case the farming of the additional issue also cannot be said to bean illegality.

The result is that this appeal has no force and is hereby dismissed. The record of the case be sent to trial Court at once for deciding the case in accordance with the directions issued by the learned Additional District Judge Amritsar Costs of this appeal with follow the event.