In a civil revision petition challenging a dismissal for want of evidence, the High Court dismissed the suit of the petitioners who failed to produce a witness for cross-examination after an ex parte order was set aside. Relying on precedent, the court held no leniency was warranted.
Civil Revision No.3422 of 2003 dismissed for want of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No.3422 of 2003
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No.3422 of 2003 Date of Decision:23.07.2009
The Punjab Wakf Board, Ambala Cantt. through its Estate Officer
.....Petitioner
versus
Ashok Kumar Sood son of Krishan Kumar
.....Respondents
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.
Present: Mr.S.K.Pipat, Senior Advocate, with Mr.Ramanjeet Singh, Advocate, for the petitioner.
Mr.Sandeep Khunger, Advocate, for the respondent.
AJAY KUMAR MITTAL, J.(Oral)
The plaintiff-petitioner filed a suit for possession of a plot measuring 107 square yards out of land measuring 1 kanal 9 marlas and 18 square feet bearing municipal No. 55/29/19 situated at Malwal Road, Ferozepur City. As a consequential relief, the plaintiff also sought a decree for permanent injunction restraining the defendant from raising any construction, effecting alteration or alienating the same in any manner.
The claim of the plaintiff as spelled out from the plaint was that the property in dispute was leased out to the defendant for 11 months w.e.f. 1.1.1996 for residential purpose on rent at the rate of Rs.700/- per mensem and a lease deed in this regard was executed on 16.2.1996. The defendant violated the terms of the lease agreement and without the consent of the plaintiff, changed the user of the plot from residential to that
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Civil Revision No.3422 of 2003
of commercial by running a hotel therein with the name as “Sood Hotel”, wherein he also served alcohol and non-vegetarian food which is against Islamic tenets. As there was violation of the terms of lease deed, possession of the disputed property was claimed back from the defendant.
Upon notice, the defendant appeared and controverted the allegations made in the plaint. The trial Court on the basis of the pleadings of the parties framed the following issues:-
The plaintiff in spite of having been provided with sufficient opportunities failed to lead evidence to substantiate his claim which led to the recording of finding against it on the material issue, i.e. issue No.1. In the light of adverse finding recorded by the court on issue No.1, the suit of the plaintiff was dismissed vide judgment and decree dated 11.6.2002 which necessitated the plaintiff to approach this Court by way of present revision petition.
Learned counsel for the petitioner has made two-fold submissions to assail the judgment and decree of the Additional District Judge, Ferozepur, dated 11.06.2002. Firstly, he submitted that the plaintiffpetitioner had produced Mohammad Ali as PW-1 who had supported the case, and secondly, alternatively, in the interest of justice, the case may be remitted to the trial Court by affording one opportunity to the petitioner to
Civil Revision No.3422 of 2003
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lead its entire evidence.
On the other hand, learned counsel for the respondent besides supporting the judgment passed by the trial Court argued that Mohammad Ali was examined by the plaintiff as PW1 in ex parte evidence after the defendant was proceeded against ex parte vide order dated 18.12.2000 but when the plaintiff did not raise any objection to the setting aside of the ex parte order dated 18.12.2000, it was set aside vide order dated 11.6.2002 and thereafter said Mohammad Ali was never produced for crossexamination. Therefore, no reliance could be placed on his evidence. Continuing with his submission, learned counsel for the defendantrespondent further submitted that as the plaintiff-petitioner had failed to lead any evidence in spite of having been provided sufficient opportunities for this purpose, no leniency can be shown to it and on the strength of the Apex Court's decision in Hameed(D) by LRs and others Versus Kummottummal Kunhi P.P.Amma (D) by LRs, 2006(3) R.C.R.(Civil) 744 , the case ought not to be remanded to enable the plaintiff-petitioner to adduce evidence.
I have heard learned counsel for the parties and do not find any merit in the submission made by the learned counsel for the petitioner.
It is established principle that when the ex parte order is set aside, the proceedings of the suit had to be resumed from the stage where it was when the defendant was proceeded against ex parte. Once it is so, it was incumbent upon the plaintiff-petitioner to have made Mohammad Ali (PW-1) available for his cross-examination and unless the veracity of his statement was tested by way of cross-examination, no reliance could be placed on his testimony. Further a perusal of the record shows that the plaintiff-petitioner was afforded about six opportunities, including the last opportunity, to lead its evidence but it failed. No justifiable explanation was furnished in not adducing the evidence in spite of sufficient opportunities
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having been granted to the petitioner. Accordingly, issue No.1 had been rightly decided against the plaintiff-petitioner for want of evidence as the onus to prove the same was upon it. Therefore, there is no infirmity or illegality in the findings recorded by the trial Court on issue No.1 that the plaintiff was not entitled to possession of the suit land.
Consequently, there is no merit in the present revision petition
and the same is hereby dismissed.
July 23, 2009 seema
(AJAY KUMAR MITTAL) JUDGE
Civil Revision No.3422 of 2003
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Election Petition No. 11 of 2007 Date of Decision: 10.08.2009
Darshan Singh Kot Fatta
.....Petitioner
versus
Makhan Singh .....Respondent
CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL.
Present: None for the petitioner.
Mr. Naveen Gupta, Advocate, for the respondent.
AJAY KUMAR MITTAL, J.(Oral)
On May 19, 2009, Mr. J.S. Puri, counsel for the petitioner had made a statement that in spite of sending several communications to the petitioner, he had not received any response from him. He had further stated that the petitioner had not come to the Court on that day for recording of his statement. Counsel had pleaded no instructions and sought permission to withdraw his power of attorney. Accordingly, this Court had directed for issuance of actual date notice to the petitioner for today.
The case was taken up during the pre-lunch session, neither the petitioner nor his counsel has put in appearance. The case was kept to be taken up after lunch. After lunch also, neither the petitioner nor his counsel has put in appearance. It appears that the petitioner is not interested in pursuing this petition. Therefore, this Court is left with no other option except to dismiss the case for want of prosecution.
Dismissed for want of prosecution.
(AJAY KUMAR MITTAL)
August 10, 2009
Civil Revision No.3422 of 2003
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seema JUDGE
2 issues framed by the court
Whether the revision petition can be maintained given the plaintiff's failure to adduce evidence despite multiple opportunities?
Whether the trial court committed an error in dismissing the suit for want of evidence regarding the plaintiff's claim to possession.
Colour shows how this judgement treated each authority
Hameed(D) by LRs and others Versus Kummottummal Kunhi P.P.Amma (D) by LRsRelied on¶31
Hameed(D) by LRs and others Versus Kummottummal Kunhi P.P.Amma (D) by LRs, 2006(3) R.C.R.(Civil) 744
The Punjab Wakf Board, Ambala Cantt.
Ashok Kumar Sood
Ajay Kumar Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
