Shri Dharam Pal v. Shri Fateh Singh

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral)

1. This second appeal has impugned the judgment and decree dated 06.10.2003 which had endorsed the finding of the trial judge dated 16.5.1996 whereby the suit of the plaintiff seeking permanent injunction had been dismissed.

2. The plaintiff had filed the present suit claiming himself to be the owner and in possession of premises bearing No.462 along with Baithak as shown in the red colour in the site plan. He had sought a decree of injunction from dispossession from the Baithak as it was contended that the defendant had threatened to take forcible possession. 2011:DHC:289 was denied that the plaintiff is the owner of the aforenoted suit property. Their contention was that the plaintiff is residing in premises no.462A whereas the premises bearing No.462 is the Baithak which is in joint possession of defendant no.1 to 9. House No.462A had come the share of the plaintiff whereas house No.462B had gone to the share of Sube Ram.

4. On the pleadings of the parties, six issues had been framed. These issues were framed on 21.9.1987. After several opportunities had been granted to the plaintiff, the plaintiff had examined himself as PW-1 on 29.01.1992. PW-2 Surender Singh and PW-3 Pradeep Kumar had also been examined in chief. The examination-in-chief of PW-1 had been deferred and thereafter in spite of several opportunities, the dates of which have been noted in chronology by the trial judge, the plaintiff failed to adduce evidence. This continued up to 10.11.1993 when again no witness was present on behalf of the plaintiff. Matter was thereafter adjourned to 27.1.1994 and then to 01.4.1994. On 21.3.1994 a joint request for adjournment was made by both the parties. On 06.4.1994 the matter was adjourned for 15.5.1994. On 15.5.1994 the matter was adjourned for 16.5.1996 on which date it was recorded that no witness was present again. The review application which has been filed by the plaintiff seeking review of the order dated 15.5.1996 was also pending. The trial judge was of the view that the matter has been resorted to very lightly by the plaintiff. The suit of the plaintiff was accordingly dismissed.

5. The impugned judgment had endorsed this finding. The record of the trial court had been perused in detail. It was illegality as the plaintiff in spite of several opportunities having been granted to him had failed to adduce any evidence.

6. This is a second appeal. After its admission, the following substantial question of law has been framed: “Whether the findings in the impugned judgment dated 06.10.2003 are perverse, if so, its effect?”

7. Learned counsel for appellant has placed reliance upon a judgment of the Apex Court reported in AIR 2001 SC 1440 Kewal Krishan Vs. Harnek Singh to substantiate his submission that the opportunity to lead evidence is a valuable opportunity. In this case the Supreme Court had granted such an opportunity to the appellant for meeting the requirements of the ends of justice. This is a one page judgment; the facts cannot be deciphered from the said judgment; each case is based on its own facts and circumstances. The instant case is one where the plaintiff has clearly been negligent and not producing his evidence in spite of the various chances and opportunities granted to him. The discretion exercised by the two Courts below is fair and judicious and it does not call for any interference. There is no perversity in the impugned judgment.

8. The substantial question of law is answered accordingly. Appeal is dismissed.

INDERMEET KAUR, J. JANUARY 18, 2011 nandan