NIHAL SINGH Vs. LAXMI

JUDGEMENT

(1.) THREE orders passed by the learned trial court at Bhiwani have been called in question in this revision petition filed under Article 227 of the Constitution of India.

(2.) THE brief facts of the case are that the petitioner and proforma respondents no.16 and 17 instituted a suit at Bhiwani for declaration with respect to succession to the property of late Richhpal son of Jaimal who is the father of the plaintiffs and contesting defendants no.2 and 3 and the husband of defendant no.1, on the basis of a registered will No.37 dated 29.5.2011, registered in the office of Sub Registrar, Hansi, District Hissar. It is the case of the plaintiffs that defendants no.1 to 3 have alienated part of the suit property through different sale deeds executed and registered at different points of time, during the pendency of the suit deriving title on the basis of inheritance through the predecessor -in -interest.These sale deeds are also subject matter of challenge in the suit. Consequently, the plaintiffs prayed for permanent injunction restraining the defendants from alienating the suit property any further and for a restraint order not to dispossess the plaintiff/petitioner and the aforesaid proforma defendants from the suit property. The issues were framed on 25.5.2012. At the initial stage of the suit, the plaintiffs filed an application for leading secondary evidence which was allowed by the learned trial judge on 23.11.2012. The first date fixed for plaintiffs' evidence was 19.12.2012 on which date the learned trial judge did not hold court and the matter stood adjourned to 8.1.2013. On 8.1.2013, no plaintiffs' evidence was present. The notice issued to PW Moti Sagar was received back with the report that he had died. One witness did not appear despite service. He was ordered to be summoned through bailable warrants and the remaining witnesses of the plaintiffs were also called for attendance on the date fixed i.e. 6.2.2013 for recording their evidence. On 6.2.2013, one of plaintiffs' witnesses namely Rajpal was present and was partly examined. His cross -examination was deferred on the request of defendant's counsel as he wished to put some documents to the witness. The request was allowed and the matter stood adjourned to 19.2.2013. The learned trial judge recorded on the order -sheet that it was last opportunity granted. On the adjourned date i.e. 19.2.2013, PW Pawan Kumar, the Registry Clerk was present and was examined. PW1 Rajpal was present and was partly examined. His cross -examination was deferred as court time was over. The case was adjourned to 28.2.2013 for crossexamination of the plaintiffs' witness and for remaining evidence of the plaintiffs. Yet again last opportunity was ordered to stand. plaintiffs' witness was present. A request for adjournment was made by the learned counsel for the plaintiffs on the ground that the opposite counsel was not feeling well. The case was adjourned to 18.3.2013 with last opportunity recorded again. On 18.3.2013, no evidence of the plaintiffs was present. An adjournment was sought by the learned counsel for the plaintiffs who was not opposed. In the interest of justice, the request for adjournment was allowed and the matter was adjourned to 3.4.2013 for evidence of the plaintiffs. In this order, it has been recorded by the learned trial judge as follows: - "Last opportunity stands, failing which evidence shall be closed by court order."

(3.) ON 3.4.2013, no evidence of the plaintiffs was again present and an adjournment was sought by the "proxy counsel" on the plea that the counsel for the plaintiffs was not well. The court acceded to the request for adjournment and fixed the case for 25.4.2013 for evidence of the plaintiffs. It was ordered that an advance copy of affidavit of witnesses shall be handed over to the opposite party before the date fixed. It was yet again ordered that the last opportunity stands. On the next date i.e. 25.4.2013, plaintiffs' witness was present, but could not be examined since court time was over. However, the learned trial judge ordered on 25.4.2013 that "The remaining evidence of the plaintiffs has closed by court order. Now case stands adjourned to 8.5.2013 for DWs." This order closing evidence appears to be in continuation of the zimni order dated 18.3.2013 in which last opportunity was granted on the request made by the learned counsel for the plaintiffs for an adjournment, but a caveat was entered that if no plaintiffs' evidence is present, evidence shall be closed by court order. In this way, the statement of PW Rajpal was recorded on 8.5.2013. Learned counsel for the plaintiffs made a request Khan Md. Firoz on 8.5.2013 to tender some documents in evidence. This request was strongly opposed by the opposite counsel on the ground that the remaining evidence of the plaintiffs stood closed by the court order on 25.4.2013. Therefore, documentary evidence could not be tendered at that stage. Facing such opposition, the learned counsel for the plaintiffs sought an adjournment to move an application for leading additional evidence. The court acceded to the request and adjourned the case to 16.5.2013 for the stated purpose.