BHAGWAN SAHAI Vs. RAMA DEVI

JUDGEMENT

(1.) This order will dispose of the above two revision petitions. Revision Petition No. 1090/2000 is against the order dated 3.5.2000 of learned Additional Civil Judge (JD) and Judicial Magistrate, West, Jaipur City, Jaipur while Revision Petition No. 1089/2000 relates to the order dated 14.9.2000 by which review petition was dismissed.

(2.) I have heard counsel for both the parties.

(3.) Briefly stated. Smt. Rama Devi is a landlord who filed a suit for eviction of shop No. 5 situated below Mahendra Hotel, Power House Road, Jaipur. It is alleged that the shop was taken on rent by petitioner's father. The shop is said to have been gifted to Smt. Rama Devi in the year 1966. The petitioner along with his two minor sons used to sit in the shop and carry on business after death of petitioner's father. The petitioner was only the adult member and Karta of the family who used to look after the work. However, it is alleged that the respondent got rent note changed and got it signed by the petitioner and this was done fraudulently. A suit was filed in the year 1987 alleging that petitioner was defaulter in payment of rent. Later on, the other grounds were added in the year 1996 such as subletting and personal necessity. The respondent completed her evidence on 6.12.99. The petitioner who wanted to build up his case and to bring the correct material on record, moved an application for the production of some documents from the respondent which was rejected by the learned Presiding Judge saying that they are irrelevant. A revision petition was filed against that order which was heard and the order was reserved, however, the petitioner defendant was ordered to produce his witnesses. The defendant did not want to examine himself first, therefore, the counsel for the respondent objected to it on which an application under Order 18 Rule 3 of Code of Civil Procedure was filed by the defendant to bring on record necessary documents, therefore he had not examined himself and the case was adjourned to 28.4.2000 on which date petitioner defendant brought another three witnesses. They were also not examined and the case was fixed on 29.4.2000 and then the learned Judge ordered to close evidence of defendant and fixed the case for final arguments. The final arguments could not be heard as proceedings were stayed on 22.9.2000. In the meantime, the petitioner filed a review petition before the learned Civil Judge who dismissed the same. I would have interfered in this case because I am of the view that substantial justice should be done between the parties but in this case I find that the defendant has been delaying the proceedings deliberately. The copies of the order sheets of the file have been produced which show that evidence of the plaintiff was closed on 19.9.99 and the case was fixed for evidence of the defendant on 3.11.99. On 1.11.99 the defendant moved application that his witnesses were not served and the case be fixed on 29th and 30th Nov., 1999. In the meantime, on 25.11.99 the defendant moved an application to summon some record and to give adjournment for evidence but the case was taken up on 30.11.99 on which date another application under Order 13 Rule 2 of Code of Civil Procedure was submitted and the application was allowed on the cost of Rs. 500.00 on 6.12.99 while other application for summoning some other record was dismissed. The case was again fixed for evidence of defendant on 4/5 Jan., 2000 on which date defendant again did not appear and moved an application praying that summons and process fee were submitted and the witnesses be summoned. The case was again fixed on 19/20 Jan., 2000 but on 19th Jan., 2000 no witness was present and the defendant was asked to get his witnesses examined by making Nishandehi on 8.3.2000. The counsel for the defendant informed that the revision petition was filed before the High Court and he wanted an adjourned, the plaintiff objected to it. However, the case was again adjourned to 26.4.2000 for the evidence of the defendant. On 25.4.2000 again it was submitted by the defendant that he had filed revision petition before the High Court so the defendant may be given an opportunity to produce evidence. The prayer was allowed and the case was fixed for evidence for 26.4.2000 but on 26.4.2000 no witnesses on behalf of the defendant was present. It may be stated that mere submission of any revision petition etc. before the High Court would not mean that the proceedings before the subordinate court have been stayed. Therefore, the learned Civil Judge was right in proceeding with the matter as there was no stay order issued by the High Court in the revision petition. An application was presented before the learned Judge that a revision petition was filed before the High Court against the order by which summoning of the document in part was dismissed and hand sought adjournment to lead evidence. The suit of eviction was filed as long back in the year 1987 and as the facts show tenancy was almost admitted. The proceedings show that the defendant in one way or the other went on delaying the matter and the learned Civil Judge in his order has given the details of the opportunities which were granted to the defendant. It may be stated that the learned Civil Judge granted innumerable opportunities to the defendant and the last opportunities to lead evidence was given on 27/28 April, 2000 but instead of producing evidence the defendant again moved an application under section 13(2) of Code of Civil Procedure on 28.4.2000 to record the evidence of witnesses first. The learned Civil Judge was of the view that defendant has mala fidely prolonged the litigation by not producing the evidence and was taking unnecessary adjournments. Learned counsel for the petitioner submitted that the last opportunity be given to produce evidence but in this case I am of the view as I have stated earlier that defendant does not deserve any sympathy. Even if, there was application under Order 18 Rule 3 A of the CPC. it was not necessary for the learned Civil Judge to allow it as the provision is directory and not mandatory as has been held in (Bhalanath Mondal and others Vs. Kalipada Mondal, 1981 AIR Calcutta 295 .