HARBANS LAL, J. - (1.) THIS regular second appeal has been filed by Ram Phal and another plaintiffs/appellant for setting aside the impugned judgment/degree dated 26.2.2008 passed by the learned Civil Judge (Junior Division), Sonepat as well as the judgment/decree dated 28.5.2008 rendered by the Court of learned Additional District Judge, Sonepat.
(2.) LEARNED counsel for the appellants has strenuously urged that the courts below have gravely erred in rejecting the prayer of the appellants for granting one more opportunity to the plaintiffs/appellants to lead their entire evidence by giving a go by to the doctrine of interest of justice. He further contended that on 25.4.2006 the issues in this case were framed. The case was fixed for 12.6.2006 for evidence of the plaintiffs/appellants. Since no evidence was present on that day, the case was adjourned without any protest from other side to 3.10.2006 and then to 5.1.2007, which was declared as holiday and then it was fixed for 3.5.2007, 20.9.2007, 14.2.2008, 26.2.2008 for evidence of the plaintiffs/appellants. It was on 26.2.2008 when the plaintiffs/appellants were sitting on the seat of their counsel, their case was taken up and impugned order closing their evidence was passed by calling in aid the provisions of Order 17 Rule 3 of CPC. He contends that no party should suffer because of the fault of his/her counsel. As such, the courts below ought to have given one more opportunity to the plaintiffs/appellants to lead their evidence. Lastly, he submits that to safeguard the ends of justice, an opportunity may be provided to the plaintiffs/appellants to lead their evidence by mulcting them with reasonable costs in view of the observations made by this Court in re : Pardeep and another v. Kela Devi and another, 2006(2) RCR(Civil) 256 : 2006(2) Latest Judicial Reports 270. I have given a deep and thoughtful consideration to this submission. In re : Pardeep and another (supra), evidence of the petitioners was closed by order. Feeling aggrieved with the order dated 4.3.2005, they approached this Court for setting aside the said order. The trial was still pending whereas in the present case, trial has been concluded and the appeal preferred against the judgment and decree dated 26.2.2008 recorded by the learned trial Court has also met failure vide judgment and decree dated 28.5.2008 rendered by the Court of learned Additional District Judge, Sonepat. Thus, axiomatically the observations made in re : Pardeep and another (supra) have no applicability to the facts of the instant case. In paragraph No. 9 of the judgment dated 26.2.2008, it has been observed by the learned trial Court that several opportunities including three last opportunities were given to the plaintiffs to lead their evidence, but they failed to lead any evidence and it was thereafter, that their evidence was closed by order of the Court. The learned Additional District Judge, Sonepat in his judgment dated 28.5.2008 in paragraph Nos. 17 to 19 has observed as under : "17. The plaintiffs-appellants had availed six effective opportunities for their evidence, whereas according to the provisions of Order 17 Rule 1 of the Code of Civil Procedure, they could be given only three opportunities for that purpose. On one date even cost for adjournment was imposed upon them. On three dates, it was clarified that the next date would be the last opportunity. What to talk of leading any other evidence, even none of the plaintiffs came forward in the witness box. There is no material on record which may show that the plaintiffs or their any witness was present on 26.2.2008. Under such circumstances, the learned trial Court was legally justified to close the evidence of the plaintiffs. The conduct of the plaintiffs remained such that they adopted delaying tactics by not producing evidence, therefore, they even do not deserve any discretion for granting them one more opportunity to lead evidence. 18. No other point has been urged. 19. In view of the foregoing discussion, I find no illegality or infirmity in the order dated 26.2.2008 closing the evidence of the plaintiffs and the findings recorded by the learned trial court under various issues framed in the case. Consequently, the appeal merits dismissal. Hence, the appeal is hereby dismissed with costs. Decree sheet be prepared accordingly. The record of the trial court be sent back alongwith a copy of the judgment and the record of appeal be consigned to the record room after due compliance." 4. If the plaintiffs/appellants were aggrieved with the order vide which their evidence was shut out by order of the Court, they were supposed to pose a challenge thereto to get it set aside. They have not disclosed any plausible reason for their having not been able to let in their evidence in the trial Court. Order 17 Rules 1 and 3 of CPC reads as under : "1. Court may grant time and adjourn hearing. - (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit. (2) Cost of adjournment. - In every such case, the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit : Provided that, - (a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid."
(3.) COURT may proceed nothwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been 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, - (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under rule 2.";