RAJBIR Vs. RAJ KUMAR

JUDGEMENT

(1.) The present appeal directs challenge against order/judgment and decree dtd. 29/8/2013 passed by the Additional Civil Judge (Sr. Div.), Charkhi Dadri (hereinafter referred to as 'the trial Court') and dtd. 26/5/2015 by the District Judge, Bhiwani whereby suit filed by the plaintiff/appellant for recovery of Rs.56,490.00 i.e. principal amount of Rs.42,000.00 on the basis of bahi entry was dismissed under Order 17 Rule 3 CPC and judgment of the trial Court was affirmed in appeal.

(2.) Perusal of the records of the trial Court would reveal that this suit was instituted by the plaintiff on 7/12/2010. On completion of pleadings of the parties, issues were framed on 27/9/2011 and the case was adjourned to 13/3/2012 for evidence of the plaintiff/appellant. Subsequent thereto, the case was adjourned on a number of occasions for evidence of the plaintiff but during the interregnum from 13/3/2012 till 29/8/2013, the appellant examined himself and one witness namely Satbir Singh whose cross examination was not completed. On 29/4/2013, the Court adjourned the case to 25/5/2013 subject to payment of costs of Rs.200.00 with last opportunity for adducing evidence. On the adjourned date, costs were paid and the case was again adjourned to 24/8/2013 for evidence of the plaintiff subject to payment of Rs.300.00. Again on 24/8/2013 case was adjourned to 29/8/2013 for evidence of the plaintiff with a direction that costs of Rs.300.00 shall be paid on the next date. Eventually on 29/8/2013, the trial Court closed evidence of the plaintiff and the suit was dismissed under Order 17 Rule 3 CPC.

(3.) Counsel for the appellant would argue that Satbir Singh PW was examined in chief on 8/11/2012 and his cross examination was deferred on the request of counsel for the respondent/defendant but the witness was bound down for the date fixed i.e. 10/12/2012. It is further argued that once a witness bound down by the Court failed to cause appearance on the adjourned date, it was the duty of the Court to secure his presence by adopting coercive steps. Another submission made by counsel is that even if the trial Court has closed evidence of the plaintiff by order, the Court has not adverted to the evidence already adduced by the plaintiff to prove his case, therefore, committed a serious error rather illegality in dismissing the suit merely by referring to Order 17 Rule 3 CPC. It is prayed that the judgments and decrees passed by the Courts may be set aside and the matter is remitted to the trial Court for decision of the case afresh, in accordance with law.