KAMLA DEVI Vs. ANIL KUMAR

JUDGEMENT

(1.) THE present appeal under Order 43 rule 1(u) of the Code of Civil Procedure is directed against the order passed by the Presiding Officer, Fast Track Court, Ghumarwin in Civil Appeal No.17/13 of 2004/2001 decided on 12.12.2005, whereby he has allowed the appeal and remanded the case back to the trial Court with a direction that the plaintiffs be granted one more opportunity to examine plaintiff- Joginder Singh and to produce the witnesses in rebuttal and also to tender in evidence the documents already placed on the file.

(2.) IT is not necessary to give all the facts of the case. Suffice to say that the plaintiffs had filed a suit in the trial Court for a decree for permanent prohibitory injunction restraining the defendants from changing the nature of the suit land or raising any construction or extracting resin from the Cheel trees from the suit land which was previously owned by Thola Singh, predecessor-in-interest of the parties on the ground that both sides are owners in joint possession of the suit land. The suit was contested by some of the defendants on various grounds including the ground that the land had been willed by Thola Singh in their favour. Various issues were framed. The plaintiffs led evidence and close their evidence in affirmative on 31.3.1995 and statement of the counsel for the plaintiffs to this effect was recorded. Thereafter the defendants led evidence and finally the evidence of the defendants was closed on 12.1.1999 and the case was adjourned to 2.2.1999 for rebuttal evidence of the plaintiffs. On 2.2.1999, the plaintiffs filed an application to amend the plaint which application was finally dismissed on 21.8.1999 and the case was listed for rebuttal evidence of the plaintiffs on 10.9.1999. On the said date, an application for adjournment was moved by the plaintiffs on the ground that they had challenged the order of the trial Court dated 21.8.1999 in a Civil Revision filed in this Court. Adjournment was granted and the case was fixed for 27.9.1999. On 27.9.1999 also no evidence was present and again adjournment was sought. The case was adjourned to 13.10.1999 and the plaintiffs were allowed to take Dasti summons to serve their witnesses. On 13.10.1999, two witnesses were examined in rebuttal and the plaintiff sought permission to file fresh list of witnesses in rebuttal. Permission was granted and the case was adjourned to 17.11.1999. On 17.11.1999, summons had not been received back after service and the matter was adjourned to 15.12.1999. On 15.12.1999 also witnesses were not served and the case was adjourned to 27.12.1999 as last opportunity. On the said date also again witnesses were not served and the evidence was closed by order of the Court and the case was listed for arguments on 22.2.2000.

(3.) AGGRIEVED against the dismissal of the suit, the plaintiff filed an appeal before the District Judge. Here it would be pertinent to mention that in the grounds of appeal taken before the lower appellate court though a ground was taken that the trial court had wrongly closed the evidence but there was no mention that on 27.12.1999 when the evidence was closed, the plaintiff Joginder Singh was present in person. Thereafter, an application was filed under Order 41 rule 27 CPC in which a fresh ground was raised. In this application it was stated that on 27.12.1999, the plaintiff Joginder Singh was present but his statement in rebuttal was not permitted to be recorded. This averment in my opinion is patently false. From 27.12.1999 till 11.5.2001 i.e. for a period 1-1/2 years the matter remained pending in the trial Court but no application was moved by the plaintiff-Joginder Singh that the order dated 27.12.1999 had not been correctly recorded. He did not complain that his presence has wrongly not been marked or that he was present on the said date. Even in the grounds of appeal this was not stated. It was only in the application under Order 41 rule 27 CPC that this fact has been stated. The learned lower appellate Court accepted the plea of the plaintiff and held that the evidence had wrongly been closed and directed that the plaintiff could also be examined in rebuttal. How the learned lower appellate court had come to the conclusion that the plaintiff ­ Joginder Singh was present on 27.12.1999 is not clear. Sanctity has to be attached to orders of the Court and court record. Unless there are very compelling reasons to disbelieve the same, the same have to be accepted to be true. The presence of the plaintiff Joginder Singh was not marked and as directed above, neither any application was moved for making his presence nor was such a ground taken in the grounds of appeal.