Ram Karan Jain & Others vs Renu Bala
1999 Latest Caselaw 874 Del

ORDER

Dr. M.K. Sharma, J.

1. Being aggrieved by the order dated 5.11.1998 dismissing the applica- tion of the petitioners under Section 151 CPC praying to recall the order dated 8.10.1998 refusing the defendants to lead their evidence, the petitioners/defendants have preferred this revision petition in this Court.

2. The aforesaid suit was instituted by the respondent/plaintiff seeking for a decree for declaration and injunction which was registered as Suit No.272/1980. Issues were framed in the aforesaid suit and the suit was listed for recording evidence of the respondent's/plaintiff's witnesses. The plaintiff examined her last witness on 4.11.1997 when the suit was adjourned for cross examination of the witness by the defendants. The aforesaid suit was thereafter adjourned from time to time for cross examination of the said witness of the plaintiff till 30.5.1998. It appears that the said witness could not be cross examined by the defendants mostly due to non availability of their counsel.

3. On 30.5.1998 cross examination of the said witness was closed and the suit was directed to be listed for recording evidence of the defendants. On 8.9.1998, counsel for the defendants sought for an adjournment on the ground that he was under a wrong impression that an application under Order 22 Rule 3 CPC would be considered, but it transpired that the said application was disposed of long ago and that the matter was actually listed for recording evidence of the defendants. An adjournment was sought for on the aforesaid ground contending that the counsel was not prepared to produce the witness. The Civil Judge recorded in the said order that various opportunities were given to the defendants for defense evidence, but although there was no ground for any adjournment, however in the larger interest of justice, one final opportunity to lead entire evidence was granted failing which, the opportunity would be deemed to be closed and the case was adjourned to 8.10.1998 for defendants evidence.

4. On 8.10.1998, the defendant was present in Court and he stated before the Court that his counsel was not available and sought for an adjournment. The aforesaid prayer for adjournment was opposed by the plaintiff on the ground that he met the counsel of the defendants and that it is wrong on the part of the said defendant to state that his counsel was not available. The Court took notice of the aforesaid pleas and also the fact that a clear opportunity of being the last and final opportunity was granted to the defendant for that day. As the defendants failed to adduce any evidence on that day, the opportunity to lead evidence of the defendants was closed and the suit was fixed for final arguments.

5. It transpires that thereafter an application was moved by defendant No.1 under Section 151 CPC on which the impugned order was passed. In the said application a different story has been put up by the defendants contending, inter alia, that the counsel for the defendants was not present in Court for some time and since the case was not taken up, he went to the High Court for attending some other works and when he reached back the Court, he was informed that the evidence of the defendants was closed on the ground that their counsel was not available, which was not proper presentation of the events. The Trial Court considered the aforesaid plea and perused the records and found therefrom that the defendants had made a specific request that his counsel was not available and the matter was kept passed over for counsel for the defendants. As the counsel was not present even thereafter and on consideration of the fact that on 8.9.1998 a conditional order was passed being last and final opportunity to the defendants to lead evidence on 8.10.1998 failing which, opportunity would be deemed to be closed, the Trial Court held that there was no ground to allow the application. The Trial Court further held that inherent power under Section 151 CPC could not be invoked for review of an order for which there are specific provisions in law. In support of the said conclusions, the Trial Court relied upon the ratio of the decision in Patel Narshi Thakershi and others Vs. Shri Pradyumansinghji Arjunsinghji; .

6. The question, therefore, that arises for my consideration is as to whether the defendants were entitled for an adjournment on 8.10.1998 and whether the order dated 8.10.1998 closing the evidence of the defendants could be set aside for the reasons stated in the application under Section 151 CPC.

7. It transpires from the records available before me and also as held by the Trial Court that several opportunities were granted to the defendants to examine their witnesses. Even on 3.8.1998 no defense witness was present although the suit was fixed for recording evidence of the defendants witnesses. Negligence and laches on the part of the defendants is apparent from the conduct of the defendants as is disclosed from the order dated 8.9.1998.

8. Counsel for the defendants sought for an adjournment on 8.9.1998 on the ground that he was under a wrong impression that the suit was listed on that day for arguments on an application under Order 22 Rule 3 CPC although the said application was disposed of long back. On 8.9.1998, the defendants sought for an adjournment on that ground alone. Although no ground for adjournment on that day was made out by the defendants, still the Court was reasonable and adjourned the matter for that day and granted one more opportunity to the defendants to lead their evidence and the suit was listed for the purpose on 8.10.1998.

9. There is a conflicting stand taken by the defendants at different point of time for non appearance of their counsel on 8.10.1998. The defendant who appeared in person before the Court stated that his counsel was not available on that day and on that ground sought for an adjournment. Counsel for the defendants, however, stated in the application under Section 151 CPC that in the morning hours he was present in Court for some time, but went away from the Court to attend another case in the High Court and during the aforesaid period of his absence the evidence was closed by the Court. The stand taken is belied by the contents of the order dated 8.10.1998. The suit was once called when counsel for the plaintiff and the defendant appeared in person. Presence of no witness was recorded although presence of the defendant in person was recorded. Again when the matter was called out, the defendant was present in person and he stated before the Court that his counsel was not available. Even at that point of time no statement was made by the defendant that his witness was present in Court.

10. Thus, in my considered opinion, the Trial Court committed no error in exercise of its jurisdiction and discretion in closing the evidence of the defendants for nonappearance of the counsel for the defendants. No infirmity is also found in not setting aside the order on the application filed under Section 151 CPC. The stand taken by the defendants at different point of time is conflicting in nature and a different story has been put up by the counsel for the defendants at a later stage. I am not satisfied that any case has been made out by the petitioners/defendants for setting aside the order dated 8.10.1998. The petition has no merit and is dismissed.