AMAR SINGH Vs. JAI PRAKASH AND OTHERS

JUDGEMENT

(1.) This petition under section 115 of the Code of Civil Procedure is directed against the order dated Feb. 15, 1984 dismissing an application of the petitioner under section 151 of the Code of Civil procedure seeking permission to examine the witnesses to prove the sale-deed, receipt and report of the Local Commissioner, already on record.

(2.) The plaintiff-respondent filed a suit for a permanent injunction restraining the defendants from making any sort of construction in the common portion shown red in the plan attached with the plaint of the suit on the allegations that it is a common passage for the plaintiff and defendant No. 1 and where common bathroom and latrine are situated and from closing the passage of the plaintiff marked 'A' and 'B-C'. The further relief claimed was for a decree restraining the defendants from constructing Dochhatti marked 'D-'E' in the plan attached in common portion belonging to plaintiff and defendant No. 1 between the premises No. 6290 and 6289, Kohlapur Road, Delhi. It was accompanied by an application for the grant of interim relief. By the order dated Aug. 22, 1979, the Subordinate Judge directed defendant 1 to 3 to maintain status quo with regard to the common passage as shown red in the site plan attached with the plaint. A Local Commissioner was appointed to inspect the spot as per directions given. The plaintiff then moved an application on Sept. 11, 1979 alleging that defendants 1 to 3, in spite of the orders of the Court, have disobeyed and flouted the orders of the Court intentionally by closing the door shown 'R-C' in the site plan by placing tin/iron sheets in front of the said door and a long with those sheets have put showcases and placed other heavy materials on Sept. 9, 1979 and thus the passage from that door of the plaintiff has been closed by them. The prayer was made for initiating proceedings for contempt of the Court. After receiving the replies, the issues were Earned in Jan. 25, 1980:-

(3.) The applicant, closed his evidence on March 9, 1982. The Subordinate Judge fixed the case for evidence of the respondents who are petitioners before me, for May, 1982. On May 4, 1982, no evidence of the respondents was present and the case was adjourned for respondent's evidence to Aug. 16, 1982. On Aug. 16, 1982,one witness Shri Gopal Dass was present, but a request for adjournment was made by respondent No. 2 that his counsel was busy in the High Court. The request for adjournment was granted subject to payment of Rs. 20.00 as costs and the case was directed to be listed for respondents' evidence on Dec. 7, 1982. On Dec. 7, 1982, no witness of the respondents was present and a final opportunity was granted subject to payment of Rs. 50.00 as further costs. The case was directed to be listed for respondents' evidence on Dec. 20, 1982. On that date, the Presiding Officer was on leave and the case was posted as per the orders of the Presiding Officer for respondents' evidence on Jan. 31, 1983. On Jan. 31, 1983, costs of Rs. 50.00 were paid but no witness of the respondents was present. The Subordinate Judge made an observation that it was patently clear from the record of the case that the respondents were deliberately delaying the matter. However, in the interest of justice, a final opportunity was granted to the respondents to produce their entire evidence on the next date but conditional on payment of Rs. 100.00 as costs. The respondents were directed to serve their witnesses on their own responsibility for the next date i.e. Feb. 28, 1983. On that date, again a request was made by the respondents that their counsel was busy in the Delhi High Court in connection with a personal case. The case was directed to come up for respondents' evidence on May 9, 1983. On that date, two witnesses of the respondents were examined. Learned counsel for the respondents wanted to examine one more witness, namely, Shri O.P. Goel, Architect and this request was allowed. The Subordinate Judge fixed the case for concluding the evidence of the respondents on Sept. 13, 1983.