Shri Bhagwan Narvadeshwar Ji ... vs Smt. Sunita Singh And 2 Others
2018 Latest Caselaw 4107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 26.10.2018
 
Delivered on 04.12.2018
 

 
Court No. - 4
 

 
Case :- SECOND APPEAL No. - 516 of 2015
 

 
Appellant :- Shri Bhagwan Narvadeshwar Ji Maharaj Mandir
 
Respondent :- Smt. Sunita Singh And 2 Others
 
Counsel for Appellant :- Mansih Kumar Nigam, Pawan Kumar Srivastava
 
Counsel for Respondent :- Ashish Mishra, Manish Goyal
 

 
Hon'ble Ajit Kumar,J.

1. This second appeal is preferred against the judgment and decree dated 5th February, 2015 passed by the Additional District Judge/ Special Judge (SC/ ST Act), Gorakhpur in Civil Appeal No. 46 of 2014 affirming the judgment and decree dated 11th July, 2014 passed by the Civil Judge (Junior Division), Gorakhpur in O.S. No. 1425 of 1993 which had been dismissed under Order XVII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.").

2. First substantial question of law which has been pressed before this Court is that the trial court erred in dismissing the suit of the plaintiff-appellant under the Order XVII, Rule 3 of C.P.C. on the ground that the application was placed before the trial court to adduce evidence in the form of oral evidence and, therefore, there was no occasion to dismiss the suit. The second substantial question of law which has been argued is that the trial court has rejected the application No. 294-C by wrongly interpreting the provisions for adducing and taking the evidence under Order XVIII Rule 2 read with Rule 3 (A) of C.P.C. The third substantial question of law that has been argued and pressed with much emphasis is that the lower appellate court could not have decided the issues on merits merely by placing reliance on the findings returned by the trial court while disposing of the injunction application.

3. The brief facts of the appellant's case is that the plaintiff-appellant through its Sarvarakar/ Manager filed suit for permanent prohibitory injunction against the defendants-respondents from raising any construction on the land described as C-1FED in the plaint map and further not to interfere in the Pooja etc. being performed by the public in general. The basis of the claim as set up in the plaint is that the land in suit earlier belonged to Betiya, State of Bihar under the management of the Maharajganj of Betiya and after the land stood transferred to court of wards. Bihar State had constructed at some point of time a residential Kothi which is now being used as commercial complex and it is the same state that had constructed the temple where the pooja etc. is being performed by the people in general and there is open land around the temple given to the religious trust of the temple as a sahan (appurtenant land) and the land in suit marked as ABCDEF over the part of that marked as ABC-1 whereas there is a platform there is will and the land south to the temple marked as C-1FED is being used as a sahan of the temple and it is this land which is in dispute.

4. The defendants-respondents denied the plaint allegations through the written statement and set up the defence that the land of the temple is never in dispute nor, there is any charitable trust created and the fact of the matter is that land in suit is bhumidhari land of the defendant-respondent Nos. 2 and 3 and the defendant-respondent No.1 has purchased the land vide the sale deed dated 15th November, 1993 by paying valid consideration and this is how the defendant-respondent No.1 is the owner in possession of the suit land; and that this has been recorded in the revenue records as such. It has also been alleged that earlier suit bearing O.S. No. 1481 of 1992 was filed by Shankar Dayal against the same defendants-respondents which was dismissed in the absence of the plaintiff-appellant and, therefore, this is the second collusive suit and is, therefore, barred. It is also alleged that the plaintiff-appellant is through the Sarvarakar but there is no name mentioned of Sarvarakar though the plaint is verified by Ramnath Yogi in the foot of the plaint. It is alleged that Ramnath Yogi was never the priest of the temple. It is also alleged that the temple is already fortified by the boundary wall. The land which is appurtenant to the temple was in fact in the name of Chandrakala Devi who executed the Will in respect thereof in favour of the defendant-respondent Nos. 2 and 3 who have sold the same to the respondent No.1.

5. Issues were framed on 6th January, 2000 by the trial court and the main issue was "whether the disputed land which is shown and described in the plaint map by the letters as CDEF belongs to the temple". Though the issues were framed on 6th January, 2000 but no evidence was led by the plaintiff until 10th July, 2014 when he moved an application along with a list of four persons to whom in that order he wanted to be examined. The first amongst them was Itwar Nath and the second was Siddharth Kumar Tiwari. The trial court vide order dated 11th July, 2014 rejected the application on the objection of the defendants-respondents that the oral evidence could have been led in the order of witnesses listed before the court at the instance of the plaintiff and the plaintiff having failed to produce the main witness, namely, Itwar Nath, the Sarvarakar of the temple, the plaintiff cannot be permitted to adduce the oral evidence of other witnesses and which would be according to the defendants-respondents against the spirit of Rule 2 (Allahabad amendment) of Order XVIII read with Rule 3A of Order XVIII of C.P.C. and as such objection was taken. The trial court, thus, refused to exercise its discretion under Rule 3A and also on the ground that there was nothing in the application to show as to when the plaintiff, the first witness would be produced for examination. The trial court recorded a finding that the plaintiff was bound to produce the witness in the order he had presented the list before the court and the averments in the application being vague as to why Itwar Nath was not being produced and if he was out of station, when he would come to give his evidence or that Itwar Nath would ever give his evidence or not. The trial court did not find, therefore, proper to exercise such discretion vested with it under Rule 3A of Order XVIII and thus, rejected the application. Since the application of the petitioner to adduce the evidence was rejected and the plaintiff did not present himself to adduce his evidence nor, any brief statement of fact or nature of evidence in support of allegations was placed before the court, the trial court found it sufficient ground to dismiss the suit under Rule 3 Order XVII of C.P.C.

6. In appeal, the court below has concurred with the finding so returned by the trial court in rejecting the application No. 294-C and found the order to be justified. The court below has, however, on issue Nos.1, 2 and 3 also recorded its findings of the fact to the effect that land in suit as a land appurtenant to the temple as per claim set up by the plaintiff was not proved. The court below has also recorded a finding to the effect that if the temple is constructed over the land of another person then the area surrounding the temple will not get divested from the recorded tenure holder unless of course, the land has been donated to the temple by the owner in possession of the land. The lower appellate court has also found that the suit was pending since 1993, issues were framed in the year 2000 and yet the plaintiff having failed to adduce any evidence even after 14 years of framing of the issues, it can be safely concluded that the petitioner never wanted to adduce his evidence and thus, failed to adduce evidence.

7. The argument advanced by the learned counsel for the plaintiff-appellant is that the trial court could not have refused to entertain evidence even if the plaintiff was not being produced. It is argued that spirit of Rule 2 of Order XVIII of C.P.C. is that the plaintiff shall lead his evidence first after stating his case and describing the nature of the evidence he wanted to adduce. It is contended that relevant rule does not anywhere prescribe that it is the plaintiff who has to come to the witness box and get himself examined first. He contends that whatever may be the fate or outcome as a consequence of the plaintiff himself not getting examined in support of the plaint allegations, it cannot be the discretion of the court and it cannot refuse to entertain the other oral evidence if the application is moved in that regard.

8. Sri Manish Nigam, learned counsel appearing for the plaintiff-appellant emphasized that this amendment of Allahabad High Court though may be said to have substituted the original Rule 2 but only elaborates already existing provisions as it points out to the Court the words and expressions indicating the relevancy of each of the documents produced by him and the nature of the oral evidence which he proposes to adduce and shall then call his witnesses in support of the issues are only elaborative of the existing provisions and more so because sub-Rule 3, 3A, 3B and 3C were not reincorporated in any modified form. Thus, according to him on the date fixed for evidence even as per the Allahabad amendment party is only required to elaborate the nature of the oral evidence in support of the plaint case and the document produced and then shall call his witnesses which means only his witnesses whom he wants to produce and not necessarily he himself as a plaintiff to be produced. Alternatively, he argues that in case if Allahabad amendment is taken to be one which makes it necessary and compulsory for the plaintiff to present himself in the witness box in the first instance, this provision stands waterdowned by insertion of new Rule 3A under the amending Act 104 of 1976.

9. So, the argument is that Allahabad amendment stands repealed if it is there to force the plaintiff to give his evidence first as being inconsistent with Rule 3A inserted under 1976 amendment.

10. Per contra, the argument advanced by Sri Manish Goyal, learned counsel appearing for the defendants-respondents is that Allahabad amendment is not elaborative of the original Rule 2 of the Order XVIII and has virtually substituted the said provision and has the effect of overriding the existing provisions. It is argued that the text in which Rule 2 has been framed sufficiently demonstrates that Legislature intended the plaintiff to state about the relevancy of each of the documents produced by him insofar as the plaint allegations is concerned and the nature of oral evidence he would like to adduce to prove those documents and also thereby the plaint allegations. So, according to him, the best witness would be the plaintiff himself to be examined in support of the plaint allegations but in case if he does not choose to appear as witness then situation would be altogether different. According to him there is no quarrel that the plaintiff can lead evidence according to his choice but if he has enlisted himself as also one of the witnesses to be examined then according to Mr. Manish Goyal, Rule 3A binds him to give his evidence first. Mr. Goyal asserts that Rule 3A has been purposely inserted by way of amending Act, 1976 so that the suit proceedings are not unnecessarily delayed waiting for corroborating evidence of plaintiff in the last and dragging the case for long seeking time and time to produce plaintiff's witness at any intermediate stage. This is also, according to him, a provision which has the effect of curtailing a collusiveness where the suit proceedings are dragged on for the plaintiff's own witness as a crucial one and the plaintiff keeps avoiding his witness for no reasons whatsoever. So, according to Mr. Goyal, the provision under Rule 3A if read with Rule 2 as per the Allahabad amendment, both the provisions operate in the same field, supplementing each other and not in any manner giving impression of inconsistency. According to him, once the plaintiff elaborates his case and wishes to produce his evidence, he shall produce the evidence in the order he wants and in case if he wishes himself to be a witness in his suit then according to Mr. Goyal Rule 3A makes it compulsory for him to enter into the witness box first. Mr. Goyal further asserts that Rule 3A is to be read in two parts and is severable. According to him, the first part which asks the party to be witness to give his evidence first is mandatory and the second part where party may apply to give his witness at a later stage which may be permitted by the court below is a discretion which is directory in nature. So, according to him, Section 97 of the amending Act of 1976 does not come in way and the Allahabad amendment cannot be said to have stood deleted by virtue of Rule 3A under the amending Act, 1976 taking aid of Section 97 of Amending Act, 1978.

11. The second argument on the second substantial question of law is that the case was date fixed for the plaintiff's evidence and the plaintiff having produced the evidence though in the last by moving an application that he wanted to produce the second witness first, the court could not have observed that the plaintiff failed to produce his oral evidence. He though admits that application mentioned the plaintiff Sarvarakar, Itwar Nath to be the first witness but since he was out of station, he wanted to produce second witness first and there was no difficulty for the trial court to have examined the second witness. According to him, the court could not have exercised its discretion in closing the oral evidence of the plaintiff completely and thereby holding that the plaintiff failed to produce the oral evidence.

12. Sri Manish Nigam, learned counsel for the plaintiff-appellant strenuously argued that even though the application was submitted at 11:00 hours on 10th July, 2014 to produce the witness No.2, the court ought to have considered the same and instead of rejecting the said application, should have proceeded to record evidence. According to him, the discretion in the manner in which it is exercised in rejecting the application showed that the court wrongly interpreted the relevant provisions and casually allowed the objections of the other side in rejecting the application. According to him, the order sheet does not state that the plaintiff himself was to appear and give his evidence although he admits that there is no dispute with regard to the list that contained the name of the plaintiff Itwar Nath as the first witness to be produced.

13. Countering the argument of the learned counsel for the plaintiff-appellant, Sri Manish Goyal submits that the order-sheet speaks itself that the plaintiff was avoiding to lead evidence. He contends that issues were framed as far back in the year 2000 and then, when the last opportunity was given on 7th Jul, 2014 almost after 14 years to lead the evidence, there was no question to exercise any discretion further in favour of the plaintiff. He contends that the court has been generous enough to grant further time on 8th July, 2014 at the cost of Rs.200/- to permit him to lead evidence on the next date. The order-sheet, according to him, of 10th July, 2014 clearly indicates that the plaintiff had virtually failed to adduce the evidence and it is in the last when the court was to pass some order closing the evidence that a Miscellaneous application was moved for deferring the testimony of the plaintiff and recording the evidence of other witness. He contends that the court has recorded very specifically that in the miscellaneous application it was not mentioned anywhere as to whether Itwar Nath had gone and that he would come back by a particular time to establish at least the bona fide of the plaintiff in moving the miscellaneous application paper No. 294-C. In absence of any such fact coming up in the said application to justify moving of such application and deferring the evidence of the plaintiff's own witness, the court cannot be said to have wrongly exercised the discretion in rejecting the application under Rule 3A of Order XVIII of C.P.C.

14. Another leg of argument in support of the substantial question of law, the third one is that having dismissed the application under Order XVIII Rule 3A or for that matter exercising the power under Section 131 C.P.C., the court could not have dismissed the suit under Order XVII Rule 3 C.P.C. The argument in a nutshell is that it was not a case where the witnesses were not presented to adduce the evidence and, therefore, there was no occasion for the dismissal of the suit on merits.

15. Sri Manish Goyal in reply submits that under Allahabad amendment Rule 3 is applicable where the case is not covered by Rule 2. So, according to him, if Miscellaneous application was moved to be considered under Rule 3A and the case was adjourned on the said application, the case of course could not be covered under Rule 2 and, therefore, the court was justified in deciding the suit forthwith.

16. The last leg of the argument is that the court wrongly recorded findings on Issue Nos. 1, 2 and 3 by placing reliance upon the findings of earlier returned by the trial court by disposing of 7-C application for injunction. To buttress the argument, learned counsel for the plaintiff-appellant has taken the court to the internal page 9 of the order where the court below has recorded that "thus, the issue has stood settled by the trial court with regard to the ownership of the land in dispute by disposing of 7-C application."

17. Per contra, learned counsel for the defendants-respondents has argued that the court below has only made a reference to the order passed by the trial court while disposing of the 7-C application as the findings are similar to one arrived by the court below at the time of disposal of interlocutory application. He asserts that though sentence is not happily worded in the sense that it states that issue has already been settled vide 7-C application but the fact of the matter is that court below has considered all the revenue entries in respect of the land in suit. The court has also recorded, according to him, that the title deed which is claimed to have been executed by the original title holder of the land of the temple was also not produced and so the court rightly observed that merely because there is a temple, the surrounding land automatically vested in the temple. Learned counsel for the defendants-respondents has taken the court to internal page 8 and 9 of the judgment of the court below where the court below has thread bare discussed various documents relating to the land in suit.

18. In order to appreciate the arguments advanced by the learned counsel of the plaintiff-appellant, it is necessary to go through the relevant provisions in this regard. Order XVIII of Rule 1 and 2 as originally stand in C.P.C. are reproduced hereunder:-

"1. Right to begin.- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

2. Statement and production of evidence.- (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(3A) Any party may address 'oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit."

19. Allahabad High Court made an amendment by substituting Rule 2 in the following manner and which became effective w.e.f. 24th July, 1926:-

"Allahabad.- In Order XVIII, for rule 2, substitute the following rule, namely:-

"2.(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned the party having the right to begin shall state his case, indicating the relevancy of each of the documents produced by him, and the nature of the oral evidence which he proposes to adduce and shall then call his witnesses in support of the issues which he is bound to prove.

(2) The other party shall then state his case in the manner aforesaid and produce his evidence (if any)."

20. To appreciate the argument further Rule 3A of the Order XVIII is reproduced hereunder:-

"3A. Party to appear before other witnesses.- Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage."

21. According to the above provision, the plaintiff has a liberty to get himself examined after the other witnesses though of course subject to discretion of the court concerned. Learned counsel for the plaintiff-appellant argues that in view of the Section 97 of the Act 104 of 1976 if the provisions under Rule 2 is taken to be one which casts an obligation upon the plaintiff-appellant to come into the witness box in the first instance and thereafter the other witnesses, the same is rendered inconsistent with Rule 3A which gives discretion to the court to consider an application of the plaintiff-appellant to give his evidence in the last. Section 97 of Act No. 104 of 1976 amendment is reproduced hereunder:-

"97. Repeal and savings.- (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed."

22. Rule 2 vide Allahabad Amendment does no stood deleted in any manner vide section 97 of 1976 Amendment Act as the said Rule 2 as originally stood was not subjected to amendment.

23. Further from the bare reading of the provisions quoted above and the arguments advanced by learned counsels of the rival parties, it clearly emerges as a conclusive legal position that Allahabad amendment of Rule 2 Order XVIII of C.P.C. if read with Rule 3A of Order XVIII as inserted by amending Act of 1976 are not in any way inconsistent with each other. The language in which the Allahabad Amendment is couched clearly spells out that the party who has a right to begin and obviously the plaintiff here, in this case, it is he, who is to elaborate not only the points involved but the nature of the evidence he wants to produce in support of the documents already lead and the pleadings raised and then he shall call his witness and get his evidence recorded. Naturally, if a party is leading an allegation in the plaint, it is required to prove and if it leads a document in support of the plaint allegations the same is required to be proved. Plaintiff is the best person to prove his plaint allegation and document led by him. However, earlier there was nothing to compel the court to record the testimony of the plaintiff first. It required the discretion of the plaintiff to either give his witness by coming himself into the witness box or call his other witnesses and until Rule 3A was inserted it remained the legal position. But now the question is that if the plaintiff/ party enlists itself as the key witness No.1 whether he can alter his position to give witness in the last as a corroborating evidence to be recorded by the court. The Legislature, it seems, was quite conscious of the dilatory tactics of the plaintiff in disposal of the suit proceedings and, therefore, it inserted Rule 3A purposefully to point the plaintiff to give his witness first if he wanted to enter into the witness box, however, the discretion is vested with the court that it can grant an application to defer the party's own witness to a later stage of the suit. In the opinion of the Court whether the first part of the order is directory or mandatory or whether the whole of the provisions is directory, this issue does not in any way help the plaintiff-appellant. If the party is there to get recorded his evidence first as a witness, according to the Rule 3A he must give first but the court can on an application exercise its discretion. It is this discretionary part which, according to me has to be exercised keeping in mind the stages of the suit and the conduct of the parties. In the instant case, the conduct as discussed above of the plaintiff, sufficiently demonstrates that he never wanted to give his witness otherwise his application would not have been so vague that he was out of station and not sure when he would return. From the facts discussed above in this judgment and referred to in the order of the trial court it does not transpire that any such request or prayer in the miscellaneous application to defer the witness of the plaintiff to some other date, was ever made. Learned counsel for the plaintiff-appellant could not demonstrate anything from the record that any such prayer was made nor, could assert in the affidavit filed in support of this appeal that any such prayer was made at any point of time.

24. In order to appreciate the second argument raised, it is necessary to refer to the order sheet to appreciate the argument. The order-sheet dated 7th July, 2014, 8th July, 2014 and 10th July, 2014 are reproduced hereunder:-

^^07-07-2014

iqdkj djkbZ x;hA izfroknh ds fo}ku vf/koDrk 11 cts gh mifLFkr vk;s rHkh oknh dh rjQ ls twfu;j vf/koDrk mifLFkr vk;s vkSj dgk fd vHkh xokgh lhfu;j ysdj vk jgs gSaA ysfdu 12%15 rd u dksbZ xokg gkftj gS u oknh ds vf/koDrk mifLFkr gSaA U;k;fgr esa ,d vfUre volj oknh dks lk{; izLrqr djus dks fn;k tkrk gS i=koyh fnukad 08-07-2014 ds okLrs lk{; oknh ds is'k gksA

08-07-2014

iqdkj djk;k x;kA

mHk; i{k vf/koDrk mifLFkrA

oknh uoZns'oj dh rjQ ls izkFkZuki= 292x bl vk'k; dk fn;k x;k gS fd U;k;ky; iSekb'k dh frfFk Lo;a fuf'pr djrs gq;s vehu vnkyr dks funsZf'kr djs fd og ekSds dh vfoyEc iSekb'k dj viuh fjiksVZ o uD'kk izLrqr djsaA

izkFkZuki= esa oknh dk dFku gS fd vnkyr ds vkns'kkuqlkj vehu dks ijokuk tkjh fd;k vkSj vehu rhu ckj ekSds ij tkus dh lwpuk ns pqds gSa ijUrq gj ckj izfroknhx.k ds vf/koDrk ekSds ij tkus dh lwpuk ugha ysrs gSa vkSj fgyk&gokyh djrs gSa ftlls vehu vc rd ekSds ij tkdj viuh fjiksVZ izLrqr ugha dj lds gSaA

ftl ij izfroknh dh rjQ ls vkifRr dh x;h fd izLrqr izdj.k esa iwoZ esa gh fu.khZr gks pqdk gSA fojks/k fd;k tkrk gSA

lquk o i=koyh dk voyksdu fd;k x;k oknh }kjk bl rjg dk izkFkZuk i= iwoZ esa Hkh fn;k x;k Fkk ftl ij U;k;ky; }kjk foLr`r vkns'k fnukad 31&05&14 dks ikfjr fd;k x;k gSA ml vkns'k ds fo:) oknh fdlh fuxjkuh esa ugha x;k gS rFkk iqu% mlh rjg dk izkFkZuk i= izLrqr fd;k gSA ckj&ckj ,d gh rjg dk izkFkZuk i= izLrqr dj og eqdnesa dks foyfEcr djuk pkgrk gS tcfd izLrqr okn esa ekuuh; mPp U;k;ky; dk 'kh?kz fuLrkj.k dk vkns'k gSA bl izkFkZuki= ds otg ls vkt dh dk;Zokgh LFkfxr gqbZ gS vkSj oknh }kjk vkt lk{; izLrqr ugha fd;k x;k tcfd i=koyh okLrs lk{; fu;r FkhA vr% izkFkZuk i= 292x eq0&[email protected]&:0 gtZs ij fujLr fd;k tkrk gSA oknh dks lk{; izLrqr djus gsrq vfUre volj fn;k tkrk gSA i=koyh okLrs lk{; oknh fnukad 10&07&14 dks is'k gksA mHk; i{k 11 cts U;k;ky; esa mifLFkr gksaA

10-07-2014

11 cts i=koyh esa iqdkj djkbZ x;hA izfroknhx.k ds fo}ku vf/koDrk mifLFkr gSA oknh dh rjQ ls twfu;j vf/koDrk mifLFkr vkds dgk fd 10 feuV esa odhy lkgc ,oa xokg dks yk jgs gSaA vkSj lk{kh; 'kiFki= yk jgs gSaA ijUrq 11%30 AM gks pqdk gS oknh dh rjQ ls dksbZ okil ugha gSA mHk; i{k ds 294x ij lquokbZ vkns'k fnukad 11-07-2014 dks is'k gksaA**

25. From the perusal of the order-sheet it clearly transpires that the case was adjourned on 7th July, 2014 giving the last opportunity to the plaintiff to produce his evidence. Then on the next date he moved an application for adjournment which was allowed at the cost of Rs.200/- and again 10th July, 2014 was fixed for evidence. On 10th July, 2014 the court waited on the assurance of the plaintiff's counsel that the evidence will be soon produced and witness will be brought and till 11:30 hours but no evidence was adduced and then suddenly a Miscellaneous application, in paper No. 294-C was presented before the court giving list of the witnesses and stating that plaintiff was out of station and, therefore, second witness should be permitted to be produced. The court deferred the hearing on the Misc. application and fixed next date i.e. 11th July, 2014 and it is on 11th July, 2014 the said application was rejected.

26. Learned counsel for the plaintiff-appellant has relied upon the judgment of this Court in the case of C.L. Dhawan and another v. Uttam Chand Chawla (1970) 40 AWR 236; where it was observed that the court cannot insist upon the party to be examined as a witness before other witnesses are examined. This judgment has dealt with Order XVIII itself but has not considered the Allahabad amendment. Moreover, the judgment is of 3rd February, 1970 whereas after 1976 amendment, the position stood changed by insertion of a new provision under Rule 3A and, therefore, the judgment relied upon by him is of no help to him on the issue which is being decided in the light of Allahabad amendment and Rule 2 of Order XVIII read with Rule 3A of Order XVIII of C.P.C.

27. Learned counsel for the plaintiff-appellant then relied upon the judgment of Madras High Court in the case of S. Ramachandra Reddy v. Natarajan 2011 (2) MLJ 329; where the Court observed that application under Rule 3A application could have been moved at any point of time. In the opinion of the Court, there is no quarrel of this proposition. The question in the instant case is not as to why the plaintiff had moved the application so belatedly, the question, instead, is as to when the plaintiff himself wanted to give his testimony first, then looking to the facts and circumstances of the case and that the issues were framed in 2000 and after 14 years such application was moved and then the witness was not being produced though the plaintiff was to appear as first witness. In the opinion of the Court, it was an absolute discretion of the court either to accept the application or reject the same. So far as the first part of the order of Rule 3A is concerned, it is quite clear from the plain reading of the said provisions that if a party wants to give his witness first, in a sense he wants to be examined first, the court shall record his evidence first. So on the facts also this judgment is distinguishable, however, on the point as to when the application could be moved, this court does not dispute the proposition. So far as the discretion part is concerned the judgment has not held anything and discretion, of course, of the court under Rule 3A will depend upon the facts and circumstance of each case.

28. Learned counsel for the plaintiff-appellant has also relied upon another judgment of this Court in the case of Mohd. Aqil vs. Alimulla 1978 AWC 485; wherein the court had allowed the plaintiff to give his witness in the last. The Court has observed in the said judgment that the provision being directory, it is for the the court to exercise discretion, whether to allow such application or not. In that case the court was considering whether the discretion can be exercised by the court or not; and court observed that the court can exercise its discretion in deferring the party's own witness at later stage after other witnesses were recorded but for that the court has to record reasons. In the opinion of the court, in the instance case, the court has recorded sufficient reasons. The court has gone into the question of time factor involved and the manner in which the plaintiff was avoiding to give his witness. It is a fact that the issues were framed in 2000 and then it was after 14 years last opportunity was given to the plaintiff-appellant to lead evidence but even then he avoided to give evidence and ultimately, when the time was running out and the suit was to be dismissed that suddenly an application was moved that instead of plaintiff's own witness some other witness should be examined. If the court has refused to exercise its discretion in favour of the plaintiff in the given facts and circumstances of the case, where the bonafides of the plaintiff is rendered doubtful, I do not see any illegality or manifest error in the order passed by the trial court in rejecting the application under Order XVIII Rule 3A C.P.C.

29. Learned counsel for the plaintiff-appellant has also placed reliance upon the judgment of this Court in Smt.Nirmala Kanta v. Mulk Raj Kohli & another AIR 1977 Alld 145 in support of his argument that the observations made, while disposing of inter-locutory applications made, should not be made basis of the findings to be returned on merits while finally adjudicating the issue in a suit as temporary orders are the orders to meet an occasion in a point of time and cannot be relevant for final adjudication of issue on merits of the suit.

30. Learned counsel for the respondents has placed reliance on the judgment of this Court in Sukhu Koeri v. Ram Lotan and others AIR 1919 Alld 252 in defence of the judgment of the courts below that in the event the parties are unable to proceed the case by leading evidence in support thereof, then the court is well within its discretion to dispose of the case on the basis of material before it and therefore, the argument is that if the court below has taken decision on deciding the issues besides the dismissal of the application under Order XVII Rule 3 by the trial court, the court below is not restrained lacking in jurisdiction in any manner in deciding the issues and so there is no legal error in the decision taken by the court below. He has also placed reliance of the judgment in Sheo Pujan Kalwar v. Bishnath Kalwar 1939 AIR (All) 642 where the court has taken similar view as in the earlier case of Sukhu Koeri (supra). Learned counsel for the appellant has also placed reliance upon the judgment of Apex Court in Shiv Cotex v. Tirgun Auto Plast Private Limited & others (2011) 9 SCC 678 in support of the argument that no substantial question of law arises, as has been framed in the appeal. If the party, according to him, fails to appear and fails to give evidence even after 14 years of framing of the issues, there remains no justifiable cause, sufficient enough, to drag on with the proceedings with one adjournment after another. Such conduct of the parties by itself will not result in a cause to maintain an appeal if the court decides the suit on the basis of material before it, rejecting the application for adjournment and it does not lie in the mouth of the plaintiff to such that there has been miscarriage of justice and therefore, there is substantial question of law to maintain the appeal under Section 100 of CPC.

31. Considering the facts and circumstances of the case and the law on the subject in issue, I am not impressed by even the third and last argument advanced by the learned counsel for the plaintiff-appellant that there arises any substantial question of law for consideration by this Court in this appeal. The trial court has rightly rejected the application and dismissed the suit under Order XVII Rule 3 and the finding returned by the court below is concurrent one and do not appear to be vitiated for any non-consideration of any material on record or misreading of any evidence. The interpretation as has been advanced by the learned counsel for the parties on the application of the Rule 2 as per the Allahabad amendment and Rule 3A, suffice it to say that once the plaintiff had given his list of witnesses in which he was the chief witness as first witness to be examined and he avoided examination for recording of his evidence for pretty 14 long years' time, in the opinion of the Court, the trial court has rightly exercised its discretion in rejecting the Miscellaneous application. The suit, therefore, was rightly dismissed under Rule 3 Order XVII of C.P.C.

32. On the question of findings returned by the court below as referred to and discussed in earlier part of this judgment, I hold that the findings are based on independent appreciation of evidence and cogent and convincing one. Learned counsel for the plaintiff-appellant could not dispute the documents that have been discussed in the order. The technical plea is taken that there is finding also that the issue has been decided by the trial court while disposing of the 7-C application and, therefore, the finding is vitiated, does not appeal to reason. It is one thing that court relies upon the finding of the trial court on disposal of interlocutory application and then proceeds to decide the issue on the said basis but it is altogether different thing that the court of appeal while discusses the evidence and records his findings and then refers also that such findings have been arrived at by the trial while disposing of the application 7-C, the interlocutory application. Thus, in the considered opinion of the Court, the findings returned by the court below on issue Nos. 1, 2 and 3 cannot be faulted with.

33. The appeal lacks merit and it is, accordingly, dismissed.

Order Date :- 04.12.2018

Atmesh/ IrfanUddin