BALI RAM Vs. BHULAN SINGH

JUDGEMENT

(1.) This appeal arises out of a judgment and decree passed by the Additional District Judge, Delhi whereby Suit No. 209/2005/1996 has been dismissed for want of any evidence in support of the claim made by the plaintiff-appellant.

(2.) The suit as mentioned above was filed by the plaintiff appellant herein seeking a decree for partition of the suit property and for rendition of accounts. On receipt of the summons issued to them, the defendants-respondents appeared to contest the suit giving rise to as many as nine issues which the trial Court framed on 16th February, 2006. The plaintiff was then called upon to adduce his evidence in support of his version. Interim orders passed by the trial Court on 25th April, 2006 and 31st July, 2006 show that the plaintiff had not taken any steps to adduce any documentary or oral evidence in support of the claim made by him in the suit. When the suit came up finally for evidence of the plaintiff on 8th September, 2006, the Court closed the evidence of the plaintiff and by a separate order proceeded to dismiss the suit on merits holding that the claim was unsubstantiated in the absence of any evidence from plaintiff. The present appeal assails the correctness of the said judgment and appeal.

(3.) Appearing for the plaintiff-appellant Mr. Singhal argued that the closure of evidence of the plaintiff-appellant by order dated 8th September, 2006 was not legally justified. He urged that although on two previous dates of hearing i.e. on 25th April, 2006 and 31st July, 2006, the plaintiff had not produced any evidence in support of his claim, yet on 8th September, 2006, the plaintiff was not only present in person but an affidavit in support of the claim made in the suit had also been prepared and was ready for being filed. He urged that immediately after the passing of the order on 8th September, 2006, the plaintiff filed an application seeking recall of order dated 8th September, 2006 inter alia pointing out that an affidavit by way of evidence of the plaintiff had already been attested on 8th September, 2006 and was ready for being filed when the Court hastily closed the evidence and proceeded to pronounce the judgment. The said application was, however, dismissed by the Court on 14th September, 2006 without examining the merit of the contentions urged therein. The Court held that since the judgment had already been dictated, there was no room for recall of the order as the order already dictated had to be pronounced. Mr. Singhal contended that the approach adopted by the Court below was not legally correct inasmuch as if the appellant had succeeded in the application, the very fact that the order had been dictated would not have prevented the Court from recalling not only the order closing the evidence but also the consequential order of dismissal of the suit. He submitted that since the plaintiff had a valid claim to the property in question against the respondent who is none other than his real brother, interest of justice would demand a fair opportunity to be given to the appellant to prove his case.