KANHAIYALAL Vs. DEVILAL

JUDGEMENT

(1.) THIS is an appeal by the defendants against an order of remand passed by the learned Civil Judge, Udaipur, on 18. 1. 56.

(2.) THE facts giving rise to it are that Devilal respondent filed a suit for redemption of a house situated in Udaipur City. His father, Pannalal, also joined him as a plaintiff at a later stage. THE plaintiffs' case was that the house in dispute once belonged to their ancestor Prithviraj, that it was mortgaged with the defendants for Rs. 151/- and that they had a right to redeem the same on payment of the mortgage money. THE suit was contested by defendant Kanhalyalal. It was averred by him that the plaintiffs were not the nearest heirs of deceased Prithviraj and they had no right to bring the suit. It was also urged that the property was mortgaged for Rs. 901/-, that defendant Gordhan was the nearest heir of the mortgagor and that he (Kanhaiyalal) had purchased that property from him for Rs. 2999/ -. THE trial court framed 13 issues. It recorded the evidence of both the parries and thereafter decided the case on 15. 12. 53, but only on issue No. 1 and 13 which ran as follows - (1) Whether Gordhan is grandson of Pitha and the nearest heir of the mortgagor Prithviraj ? (13) Whether Devilal was the nearest heir of deceased Prithviraj and was entitled to bring the suit? It was found by the trial court that plaintiff Devilal was unable to prove himself as the nearest heir of the mortgagor, Prithviraj, and on this point alone the suit was dismissed. Aggrieved by that decree, the plaintiffs filed an appeal which was heard by learned Civil Judge, Udaipur. It was urged before the appellate court that the trial Court had omitted to frame an important issue about the amount of the mortgage money and that it had arbitrarily shut out the evidence of the plaintiffs on 8. 4. 53. Both the arguments found favour with the appellate court and the decision of the trial court was therefore set aside on payment of costs amounting to Rs. 80/- by the plaintiff to the defendant. THE case was remanded with direction to allow the plaintiff to produce his evidence, which was shut out on 8. 4. 53, to frame one more issue about the amount of the mortgage money and then to decide the case afresh. It is against this order that the present appeal has been filed.

(3.) I have given due consideration to these arguments. I have also looked into all the orders recorded by the trial court between 3. 8. 51 and 8-4 53 when the plaintiff's evidence was closed. It was no doubt unfortunate that although the suit was filed as early as 9. 11. 44, the plaintiff was not called upon to produce his evidence till 3*8-51. The blame for this delay, however, cannot be justly placed on the plaintiff, because it was the defendant who was required to produce his evidence earlier and it was he who took all these years to finish the same. I do not mean to justify the manner in which indulgence was shown by the trial court to both the parties, but what is meant to be stressed, is that the defendant himself having taken about 5 years to complete his evidence, it does not lie in his mouth to complain that the plaintiff could not produce his evidence within the time given to him. If the plaintiff were negligent, his negligence could certainly not be condoned on the ground that the defendant had shown similar negligence in the past, but the perusal of the order sheets shows that the plaintiff had called his witnesses through the court from the very beginning. The order-sheet dated 3. 8. 51 shows that the plaintiff had requested the court to call 3 witnesses, namely, Ramchander, Bhagwanlal and Kalulal, and he had also deposited the required processes along with fees. The case was fixed for hearing on 23. 8. 51. On that date, the presiding officer of the trial court was himself not present. At the same time, the witnesses were also absent and, therefore, they were ordered to be summoned again. It is obvious that this date was not changed on account of any fault on the part of the plaintiff. The case was then adjourned to 20. 9. 31. On that date, it was found that the witness Bhagwanlal was not served and summons of Ramchander was also not returned after service. Only one witness Kalulal was served, but he wanted his process through his office and, therefore, he did not turn up. This date was, therefore, changed to 19. 11. 51. It is clear that the plaintiff was again not to be blamed for the adjournment. When the, case came for hearing on 19. 11. 51, it was transferred from one court to another and so the case was adjourned to 20. 12. 51. On this date again, the witnesses were not present and the Munsif was also out of station. The case was then adjourned to 7. 3. 52, which had again to be changed because the Munsif was transferred, and so, the case was adjourned to 9. 5. 52. On this date, it was found that two witnesses, namely, Kalulal and Ramchander were not present, and therefore bailable warrants were ordered to issue to enforce their presence, and the case was adjourned to 22. 7. 52. On this date, Ramchander and Kalulal were present, but unfortunately they could not be examined because the Munsif had gone to Jodhpur. The case was again transferred on 25. 7. 52 from the court of City Munsif district. When the case came before Munsif District on 28. 7. 52, he adjourned it to 16. 9. 52 and ordered witness Ramchander to be called by warrant and Kalulal through summons. The case was adjourned to 13. 11. 52, but that date was changed by the court at the request of the plaintiff's counsel. One more date was similarly changed by the trial court and when the case came for hearing on 28. 1. 53 it was found that Kalulal was absent and so bailable warrants was ordered to issue against him. Ramchander was also ordered to be called by warrant. On this date, the plaintiff further requested the trial court to call his witnesses Bhagwanlal, Shobhalal, Shanker and Bhera as per his prior application dated 21. 1. 53. The court ordered summonses to be issued to these witnesses also and adjourned the case to 8. 4. 53. On that date, the court found that the plaintiff had failed to deposit fees for issuing warrants for Kalulal and Ramchander. As regards the remaining 4 witnesses, namely, Bhagwanlal, Shanker, Shobhalal and Bhera, it was found that Bhagwanlal, Shanker and Bhera were served, but they did not turn up inspire of service, while Shobha Lal could not be served. The plaintiff requested the court to issue warrants against the witnesses who had not turned up inspire of service, but that request was turned down and, thereafter, the case was decided against him.