AMAR SINGH Vs. HANS RAJ SACHDEVA

JUDGEMENT

(1.) The plaintiff-petitioner filed the suit for specific performance of an agreement to sell. Issues were framed on 10th November, 1978 and by anorder dated 15th May, 1979 the suit was adjourned to 8th August, 1979 for plaintiff's evidence on which date the suit was adjourned for plaintiff's evidence to 3rd October, 1979. The Presiding Officer was on leave on 3rd October, 1979. The suit was adjourned for proper order to 10th October, 1979 on which date 15th January, 1980 was fixed for plaintiff's evidence. On 15th January, 1981 from the impugned order it appears, the plaintiff alone was present, but it is stated by the plaintiff that his counsel has also present. He says. that a request for adjournment was made but it was opposed. Statement of the plaintiff who was admittedly present was also not recorded. No reason isentioned in the order, why his statement was not recorded. Plaintiff had not filed his list of witnesses as required by Order 16 rule I of the Code of Civil Procedure, He had neither summoned any witness for the date fixed nor any other witness' was present. The trial court has observed that the plaintiff.did not produce witness during the last 13 months. These observations are contrary to record and disclose the non-application of mind by the Subordinate Judge. The first date for plaintiff's evidence was 8th August, 1979 and the next date was 15th January, 1980. It appears that the Subordinate Judge acted illegally and without giving any valid reasons closed the plaintiff's evidence.

(2.) Order 16 rules I and I A of the Code of Civil Procedure as substituted by Act 104 of 1976 are as under :-

(3.) It is also submitted on behalf of the respondents that the plaintiff has been delaying the suit. The suit was filed in February, 1976 but the plaintiff states that the defendants have been delaying the progress of the suit as they filed their written statement after the expiry of more than 19 months and thereafter defendant No. 1 was ordered to be proceeded ex parte and subsequently he made an application for setting aside the order proceeding exparte agaiit him. Under these circumstances, it does not appear that the plaintiff himself was delaying the disposal of the suit. On the contrary it appears that the suit has been delayed by the defendants. The impugned order is without jurisdiction and I set aside the same.