- (1.) THE plaintiffs are in appeal against the judgment and decree of both the Courts below by which his suit for declaration and consequential relief of permanent injunction has been dismissed.
(2.) THE facts of the case are not required to be recapitulated as the same have been given in the judgments of both the Courts below. It would be suffice to mention that the suit of the plaintiffs was dismissed in terms of Order 17 Rule 3 of the Code of Civil Procedure, 1908 as they failed to produce oral evidence and had only tendered documents Ex.P1 to Ex.P9 and Mark A to B, which were not proved in accordance with law. Moreover, the plaintiffs themselves did not step into the witness box in support of their case.
(3.) LEARNED counsel for the appellants has referred to a judgment of this Court in the case of Om Parkash v. Thana Ram and others, 2011 161 PunLR 190 to contend that the provisions of Order 17 Rule 3 CPC are penal in nature and should not be attracted without giving any warning or burdening the party with costs. I have heard learned counsel for the appellants and also examined the record. While dismissing the appeal, the lower Appellate Court has made the following observations in para 25 and 26 of its judgments, which read as under: - "25. A perusal of the record requisitioned from the learned trial Court would reveal that the suit was filed on 25.02.2005 and issues were framed, after completion of pleadings, on 03.08.2006. Thereafter, the suit file was requisitioned by the appellate Court before whom an appeal arising out of order passed by the learned trial Court on an application for temporary injunction was pending. The file was received back from the learned appellate Court on 10.12.2009 and the matter was adjourned to 23.02.2010 for evidence of the plaintiffs (appellants herein) with a direction to the appellants to supply copies of the affidavits to the defendant's (respondent) counsel a week prior to the date so fixed. On 23.02.2010 no evidence of the appellants was present and the matter was adjourned to 31.03.2010. On 31.03.2010 again no evidence of the appellants was present and a prayer for grant of one more opportunity was made. On behalf of the appellants their counsel Shri Ujagar Singh, Advocate also made a statement to undertake to bring their entire evidence on the adjourned date and to say that in the event of failure of the appellants to conclude their evidence on the adjourned date it should be deemed to be closed. In view of the situation, the matter was adjourned to 20.05.2010 (wrongly written as 29.05.2010 in Zimni order) for evidence of the appellants and it was clarified that it would be the last opportunity for the purpose. On 20.05.2010 inspite of last opportunity and the undertaking given by their counsel the appellants did not bring any evidence and on their behalf documents, Exhibit P1 to Exhibit P9, were placed on record and a prayer for further adjournment was made on the plea that a child in the family of the appellants was suffering from dog bite. In view of this situation learned trial Court granted another opportunity to the appellants to conclude their evidence on May 28, 2010 and made it clear that in the event of evidence being not brought on that day their evidence would be closed by order. However, on the adjourned date i.e. May 28, 2010, again the evidence of the appellants was not present and on the request of their counsel, case was kept pending by the learned trial Court till 04.00 P.M. Inspite of that no evidence on behalf of the appellants was produced and compelled by the situation, learned trial Court resorted to the provisions of Rule 3 of Order XVII of the Code of Civil Procedure to close evidence of the appellants and to dispose of the suit. 26. Under Rule 3 of Order XVII of the Code of Civil Procedure, maximum three opportunities can be granted to a party to conclude its case but in the case on hand even this limit was crossed by the learned trial Court so as to ensure that the appellants had an adequate and reasonable opportunity to conclude their evidence. The opportunities so granted included two last opportunities and in addition an undertaking was also given by learned counsel for the appellants on 31.03.2010 but no evidence was brought by them inspite of this. The circumstances so glaring on record leave nothing to doubt that the appellants were taking the proceedings before the learned trial Court in a lackadaisical and casual manner. In the present day syndrome witnessing all round hue and cry about swelling back log of cases before the Courts such kind of laxity on the part of the litigants can be ill -afforded by a Court as also the litigants. Therefore, the approach of the learned trial Court in having resorted to the provisions of Rule 3 of Order 17 of the Code of Civil Procedure cannot be said to be unreasonable or unjustified by any stretch of imagination.";