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2018 Supreme(HP) 1330
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sureshwar Thakur, J.
Bharti Kuthiala & Anr. - Appellants
Versus
Vipin Chhibar - Respondent
Civil Miscellaneous Petition (M) No. 453 of 2017
Decided On : 22-05-2018
Satyen Vaidya, Suneet Goel, Vivek Sharma, Advocates for the appearing parties.
The paramount consideration of ensuring a fair trial and the authority to impose exemplary costs.
Headnote:
Order 8 Rule 1 (A) (3) - Granting of Opportunities to Defendant - Order 3 Rule 4 SubRule (2) - Fair Trial Consideration - Imposition of Costs - Exemplary Costs
Fact of the Case:
The defendant failed to avail opportunities to adduce evidence, leading to a petition contending that the trial judge's granting of repeated opportunities was improper and facilitated the defendant's attempt to prolong the litigation. The petitioner also argued that the trial judge committed a gross illegality by permitting the defendant's counsel to make a prayer after pleading no instructions.
Finding of the Court:
The court found that while the granting of consistent opportunities to the defendant may prima facie commit improprieties, the paramount consideration was to ensure a fair trial. The court deemed it fit to not interfere with the impugned order, but imposed exemplary costs upon the defendant for want thereof.
Issues: Improper granting of opportunities, gross illegality by the trial judge, and imposition of exemplary costs.
Ratio Decidendi: The paramount consideration was to ensure a fair trial, and the court had the authority to impose exemplary costs upon the defendant.
Final Decision: The petition was dismissed, and costs of Rs. 15,000 were imposed upon the defendant. The trial court was directed to complete the trial within nine months.
JUDGMENT
Sureshwar Thakur, J —A perusal of the relevant zimani orders, appended with the petition, make disclosures, qua upon closure of the plaintiff''s evidence, in the affirmative, on, 10.6.2016, thereafter the relevant opportunities for adduction of defendants'' evidence, being afforded to the latter. However, since 11.8.2016 upto 29.8.2017, the apposite opportunities remained un-availed, by the defendant, besides when the matter was listed on 9.11.2017, for adduction, of, defendants'' evidence, thereat rather, an application was moved, cast under the provisions Order 8 Rule 1 (A) (3) read with Section 151 CPC, seeking therein, hence leave of the Court, to, place on record certain documents. The learned counsel for the petitioner, contends with vigor that (i) the granting, of, apt repeated apposite opportunities vis- -vis the defendant, for, the relevant purpose, from 10.6.2016 upto 9.7.2017, being improper, (ii) significantly, when the apposite nonavailment(s) , was, prima facie , a, sequel, of, a clever mechanism, adopted by the defendant concerned, to prolong and protract the litigation, hence, the learned trial Judge, in, granting, the apposite opportunities, to the defendant concerned, she has rather facilitated the aforesaid endeavour.
2. The learned counsel, for, the petitioner has also brought, to, the notice of this Court, the provisions of Order 3 Rule 4 SubRule (2) , the relevant extract whereof, is, extracted hereinafter
"(2) every such appointment shall be [filed in Court and shall, for the purposes of sub-rule (1) , be] deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."
Whereupon, he makes a submission, that, with on 5.8.2017, the counsel for the defendant, pleading no instructions, hence, in consonance with the apposite provisions borne, in, Order 3 Rule 4 CPC, the learned trial Court was enjoined to determine, the, apt authorization bestowed vis--vis the counsel concerned, whereas her permitting him, to, thereafter rather make the requisite prayer, hence has resulted in, a, gross illegality.
3. Apparently, the granting of consistent opportunities, by the learned trial Judge vis--vis the defendant, to adduce his evidence, on the relevant issues, does tantamount, to the learned trial Judge prima facie committing improprieties, yet, (i) it appears, that, the paramount consideration, which hence weighed with the learned trial Judge, was, of ensuring, a, fair trial of the suit (ii) AND concomitantly for facilitating a fair trial, thereupon the defendant was enjoined, to be granted, the requisite opportunities, to adduce evidence, on the relevant issues. However, even if, repeated opportunities were granted, to the defendant to adduce his evidence, on the relevant issues, yet, it was incumbent upon the learned trial Judge, to impose exemplary costs, upon, the defendant for precluding, the, defendant from availing any further opportunity(s) besides other befitting deterrents, were enjoined to be beset upon the defendant. Even if the aforesaid imposition of costs, is, not ordered to be made upon the defendant, by the learned trial Judge, yet this Court deems, it fit, that rather with the learned trial Judge, hence apparently bearing in mind, the paramount consideration, of, ensuring a fair trial of the suit, thereupon hence hers affording the apposite opportunities to the defendant, whereupon when the aforesaid apt non-imposition, is, curable by this Court, by its imposing exemplary costs, of, Rs. 15, 000/- upon the defendant hence for want thereof, it is deemed not fit to interfere with the impugned order.
4. The learned counsel, for the petitioner has also contended with vigor, that with the learned counsel, for, the defendant, making on 5.8.2017, hence submissions before the learned trial Cou
