High Court of Punjab and Haryana, Chandigarh
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Ludhiana Improvement Trust, Ludhiana. v. Kimat Singh. - SAO-41-2003  RD-P&H 2984 (8 May 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision: 12.5.2006
Ludhiana Improvement Trust, Ludhiana.
CORAM: HON'BLE MRS.JUSTICE NIRMAL YADAV
Present:- Mr.Rakesh Garg, Advocate, for the appellant.
Mr. S.S.Salar, Advocate, for the respondents.
This is defendant's appeal against the judgment dated 14.2.2003 passed by the learned Additional District Judge, Ludhiana, vide which the case has been remanded to the trial Court with a direction to decide it afresh.
Briefly stated, case of the plaintiff is that he is the owner of land measuring 1 kanal 3 marlas, situated in the revenue estate of village Taraf Karabara. The suit land was acquired by the Ludhiana Improvement Trust for the development scheme of Feroze Gandhi Market, Ludhiana.
Since the plaintiff's land was acquired, he became a `local displaced person'.
He deposited a sum of Rs. 500/-vide receipt dated 19.5.1976 to claim allotment of plot being `local displaced person'. The Improvement Trust had allotted plots to several similarly placed persons in Sarabha Nagar and Bhai SAO No.41 of 2003
Randhir Singh Nagar, Ludhiana under the development scheme of the Trust.
Inspite of several representations made by the plaintiff and the promises made by the Trust, it failed to allot any plot to the plaintiff. Hence the suit was filed.
Suit was contested by the Improvement Trust on the ground that the plaintiff had no locus-standi and the Trust had called the plaintiff vide letters No. 11655 dated 16.12.1996 and 1880 dated 3.7.1997, but he did not come present to prove his claim. Receipt of Rs. 500/- on 19.5.1976 has been admitted. It is pleaded that the Department of Local Government of Punjab has laid down the procedure of allotment of alternative plots to `local displaced persons` vide letter memo No. 5/24/97-32 II/2746 dated 2.3.1997.
After settling the issues and taking the evidence on record, the trial Court dismissed the suit on the ground that the plaintiff did not produce any evidence to prove his case. It was observed that inspite of granting 13 opportunities, including some opportunities with costs, the plaintiff had failed to produce any witness in the Court and accordingly the evidence was closed by order of the Court.
Feeling aggrieved plaintiff filed the appeal before the First Appellate Court taking the plea that the Improvement Trust had not considered plaintiff's case for allotment of alternate plot though other similarly situated persons have already been allotted the plots. It was further pleaded that plaintiff did not get reasonable opportunity to lead evidence. It is argued that the plaintiff-appellant had deposited diet money for summoning the concerned Clerk of the Improvement Trust who was served but did not turn up. Therefore, he was ordered to be summoned SAO No.41 of 2003
through bailable warrants vide order dated 19.3.1999 by the trial Court. The witness did not appear inspite of having been summoned through bailable warrants and the learned trial Court closed the evidence of the plaintiff and dismissed the suit under Order 17 Rule 3CPC. It is, therefore, argued that once the witness had been summoned through the process of Court, the learned trial Court should not have closed the evidence of the plaintiff and the presence of the witness should have been secured by coercive method.
The trial Court after taking into consideration the facts and arguments of the plaintiff held that since the plaintiff's land was acquired prior to 1983 and his case is covered under 1975 Rules, therefore, the Improvement Trust should have considered his case as per the Rules prevalent at that time.
Plaintiff had got the summons issued of Clerk of the Improvement Trust through the Court. The said Clerk was served but did not come present inspite of bailable warrants having been issued against him. The Court, however, closed the evidence instead of securing the presence of the witnesses. Accordingly, the plaintiff suffered serious prejudice. Case was remanded to the trial Court for fresh decision after affording reasonable opportunity to the plaintiff as well as the defendants to lead evidence.
The Improvement Trust has challenged the finding of the First Appellate Court and raised the following substantial questions of law:-
1. Whether in the facts and circumstances of the case, the judgment of the Lower Appellate Court is illegal and liable to be set aside?
2. Whether the plaintiff/ respondent is entitled to the allotment as a local displaced person under the Rules? SAO No.41 of 2003
3. Whether the plaintiff/ respondent is entitled to allotment as a local displaced person under the 1983 Rules for the Land Utilization of the Punjab Town Improvement Act, 1922? Learned counsel for the appellant argued that the judgment of the learned Lower Appellate Court is illegal. Plaintiff-respondent had been given sufficient opportunity but he failed to produce the evidence, therefore, his evidence was closed by order of the Court. The First Appellate Court fell into error by remanding the case for fresh decision. On careful consideration of the facts on record it is evident that the plaintiff had deposited the process-fee etc. and the list of witnesses before the trial Court.
The trial Court had summoned concerned Clerk of the Improvement Trust.
Inspite of the summons having been served on the Clerk, he did not come present, therefore, he was again summoned through bailable warrants.
Inspite of bailable warrants being issued, the Clerk did not come present and at that stage, evidence of the plaintiff was closed.
To my mind, the closing of the evidence at that stage is against the provisions of Code of Civil Procedure. Once the witness had been served but did not come present and bailable warrants were issued to secure his presence, the Court should not have closed the plaintiff's evidence as he was not at fault for not adducing the evidence. Accordingly, the order of the trial Court in closing the evidence at that stage caused serious prejudice to the plaintiff which certainly goes to the root of the case. Even otherwise, the defendants have pleaded in their written statement that plaintiff was not allotted the plot as `local displaced person'. He was called several times, but he did not come present to prove his claim. The defendants have not SAO No.41 of 2003
denied that plaintiff does not fall within the meaning of `local displaced person'. In fact the Improvement Trust did not consider the plaintiff's case under the said category. They have also admitted that plaintiff had deposited a sum of Rs.500/- on 18.5.1986 itself which is the requirement as per the rules. The judgment of the First Appellate Court is, accordingly, just and legal in view of the given facts of the present case. Hence, no ground for interference is made out. This appeal is accordingly dismissed.
( Nirmal Yadav)
May 12, 2006.
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