VIJAY PAL SINGH KANG Vs. GENERAL PUBLIC

JUDGEMENT

(1.) ON 27 January 2014, the petitioner was before this Court in CR No.6617 of 2013. In the aforesaid revision, an application was filed seeking an ad -interim injunction to the effect that the proceedings in the civil suit filed by him from where the present revision arises, may be ordered to be stayed. This Court by order dated 27 January 2014 took into consideration the fact that since notice in the revision has been issued to the respondents by this court, the trial court should be directed to adjourn the suit beyond 12 February 2014, the date fixed by the court. The date of hearing before the trial court was 28 January 2014. It is the say of the petitioner that the trial court was orally informed of the order passed by the High Court on the previous day when the matter was directed to be adjourned in terms of the order. This was a direction to the trial judge. The learned trial judge by order dated 28th January 2014 passed an order closing evidence of the plaintiff, who is the aggrieved petitioner before this Court. The matter was posted for evidence of the defendants for 7 February 2014. According to the learned counsel, the next date before the trial court is 17 May 2014. It may be noted that on 12 February 2014, the aforesaid Civil Revision was disposed of with the observation that notice under Section 80 of the CPC is not required to be served in the present case and thus the suit was to proceed. The revision was filed in the background that the petitioner had assumed that Section 80 of the CPC was mandatory to maintain the suit, and therefore, he had applied under Order 23 Rule 1 of the CPC to withdraw the suit as he thought it suffered from an incurable defect. The request was declined by the trial court against which the petitioner, feeling aggrieved had approached this Court in the aforesaid Civil Revision. Therefore, it can be said that on 28 January 2014, the trial court could not have passed any order. If an order was passed, it was legally inoperative. It was at best passed in ignorance of the directive issued by this Court. Be that as it may, closing of evidence in such circumstances appears to be a different ball game. With respect to the conduct of the petitioner in pursuing his case prior to 28 January 2014 the learned counsel submits that though three opportunities were granted to the plaintiff but they were in quick succession spaced out by a few days. His client felt squeezed in the short span of time. Resultantly, he was unable to lead his evidence.

(2.) THE suit was for declaration claiming ownership and possession of Plot No.604, Sector 69, SAS Nagar, Mohali. Considerable time in the suit was consumed on the application under Order 23 Rule 1 of the CPC filed by the petitioner for withdrawing the suit where the respondents did not file reply and took many dates which delayed decision in the application. This position went on for about a year. The defendants are brothers and a sister of the petitioner all settled abroad. The petitioner is the youngest of the siblings. The other four are either settled in U.K., Ireland or Germany. The 6th defendant is GMADA/PUDA against whom mandatory injunction is sought directing them to transfer the plot in question in the name of the petitioner. His case is that he has spent the entire amount out of his own earnings towards paying the sale consideration of the plot though allotted in favour of his father by PUDA defendant. His claim is also based on testamentary succession on an unregistered will of the father. Be that as it may, it is not for this Court in the instant petition to embark upon the merits since the limited question is whether the petitioner should be permitted an opportunity to lead his evidence. Taking the totality of facts and circumstances into consideration, it appears to me to be harsh if the plaintiff is not permitted to lead his evidence and therefore I would interfere in this matter. Such ex parte interference would cause no prejudice to the respondents, who are the petitioner's brothers and a sister, all well settled in life living in foreign countries, even if they are not heard by this Court in the making of this order. Since they live abroad issuing notices to them would prolong proceedings and delay the suit. None of their rights to the suit property is disturbed by this order.

(3.) RESULTANTLY , this petition is allowed and the impugned order dated 28th January, 2014 (P -1) is set aside. The petitioner would now be at liberty to lead his evidence but without taking any unwarranted adjournments. In case an unnecessary adjournment is sought, the learned trial court would be free to pass such orders as its discretion commands and justice of the case demands, but the petitioner must have reasonable opportunity to bring his evidence on record.