Dharam Singh v. Mahinder Singh & Ors.

1. By this petition under Article 227 of the Constitution of India, petitioners who are legal heirs of the original plaintiff, and who were impleaded as plaintiffs after the death of the original plaintiff, Sh. Dharam Singh, impugn the order of the trial court dated 13.12.2011 by which the trial court dismissed an application under Order XVIII Rule 2 of Code of Civil Procedure, 1908 (CPC) whereby petitioners/plaintiffs were seeking to lead further evidence on the ground that cross-examination of the original plaintiff Sh. Dharam Singh was not completed and of which position they 2014:DHC:4809 were not aware because of the fact that Sh. Dharam Singh himself was seriously sick leading to non-completion of his cross-examination.

2. A reading of the impugned order, as also the record of the trial court, shows that the suit was filed by the original plaintiff way back in the year 1981. Issues were framed in the year 1983 and again reframed in the year 1986. Plaintiff was thereafter examined firstly in the year 1988 and in spite of three opportunities taken for completing his examination-in-chief, the same could not be completed. It was time and again deferred and in fact continued till the year 2006 and ultimately plaintiff’s evidence was closed on 24.4.2006. Thereafter the matter was listed for evidence of the defendants and defendant’s evidence was recorded and closed on 8.5.2008. The case was at the stage of final arguments when the subject application, which has been dismissed by the impugned order, was filed. Trial court notes that the plaintiffs took almost 20 years to complete their evidence and ultimately the evidence of the plaintiffs was closed on 24.4.2006 and that final arguments had also commenced and which were heard in part when the subject application was filed.

3. It is clear that the original plaintiff, and thereafter the present plaintiffs, are guilty of gross delay in the conduct of the suit. Surely, 20 years for recording of evidence, by no stretch of imagination, is a less period. Also, the original plaintiff never during his lifetime asked for completion of his cross-examination, and therefore the legal heirs of the plaintiff cannot urge the ground of illness of the original plaintiff Sh. Dharam Singh as a ground for additional evidence when Sh. Dharam Singh himself never took up this ground. If in case such as the present, when a suit is pending now for about 34 years, fresh evidence is allowed to be led, one wonders that in which generation would the suit ever come to an end.

4. Dismissed. Interim order staying the proceedings in the suit is vacated.

SEPTEMBER 18, 2014 VALMIKI J. MEHTA, J Ne