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1996 DIGILAW 932 (RAJ)

Hari Shanker v. Rukmani Devi

1996-08-16

P.C.JAIN

body1996
Honble JAIN, J. – The petitioners-defendants have filed this petition under Sec.115 C.P.C. against the order dated 9/4/96 passed by Shri Bajrang Singh Sekhawat, RJS, Civil Judge (Jr.Div.), Sujangarh in civil original Suit No. 83/92 whereby the second application moved by the petitioners under Order 19 Rule 2 C.P.C. was rejected . (2) The plaintiff-respondent filed a suit for eviction and arrarrs of resent stating, interalia, that the suit premises was let out to Hari shanker, petitioner-defendant no.1 @ Rs. 350/- per month but the tenant has not been making payment of rent since March 17,1991. It was also alleged that the premises in question was let out by petitioner-defendant no.1 to petitioners 2 to 4. During the pendency of the suit, an application for determination of rent under Sec. 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, was filed. Some documents and affidavits were also filed. The Petitioners-defendants found glaring contradictions in the application.They therefore, filed an application under Order 19 Rule 2 C.P.C. on 30/1/95. The plaintiff- respondent contested the application on the ground that in the application, the petitioners-defendants have not pointed out the reason why the permission was being sought for cross-examining the witnesses. The argument prevailed over the Court and the application was dismissed vide order dated 27.5. 1995. Since the above application was dismissed for the simple reason that the defendants -petitioners did not point out the contradictions on the basis of which the permission of the Court was sought. The petitioners again moved a fresh application under Order 19 Rule 2 C.P.C. giving details of contradictions on 10/10/95. The plaintiff-respondent contested the application and the court by the impugned order also dismissed this application. The petitioners-defendants have, therefore, filed this petition. (3) I have heard learned counsel for the petitioners and the non-petitioner. (4) Learned counsel for the petitioners has submitted that in the application dated 10/10/95, the petitioners specifically pointed out the contradictions which existed between the pleadings and the documents which necessitate elucidation of facts for correct adjudication of the resent to be determined between the parties. The Court has got ample power to allow a party to cross-examine the witnesses.For this purposethe learned Court did not decide the point and dismissed the application on the ground that the previous application of the petitioners was already dis- missed by the court. The Court has got ample power to allow a party to cross-examine the witnesses.For this purposethe learned Court did not decide the point and dismissed the application on the ground that the previous application of the petitioners was already dis- missed by the court. The order passed on an application under Order 19 Rule 2 C.P.C. is not final and the Court was not prevented from adjudging the same on merits. (5) Learned counsel for the non-petitioner has supported the order of the learned trial court and ralised the preliminary objection that the petitioners-defen- dants were precluded from filing the second application under Order 19 Rule 2 C.P.C. for the same purpose when their first application was dismissed by the Court. According to him, the principles of resjudicata apply to applications also. He strongly relies on BunduVs Harshmal (1). In this case relying on satyadhavan vs. Deoragin Devi (2), it was held that the principles of resjudicata apply to applications also and if the first application has dismissed, the party cannot reagitate the same matter again. (6) He further submitted that it is the general tendency of a party facing a suit for ejectment and arrears of rent to delay the disposal of the suit and interlocutary applications are frequently filed. In the instant case, the petitioners defendants could not justify the reasons seeking indulgence of the Court to allow them to cross-examine the witnesses with reference to the affidavits filed by them. Both the parties were entitled to file affidavits.The matter of determination of rent is an interlocutary step and the progress of the case should not be held-up on such applications. (7) I have considered the rival contentions. The impugned order was passed on an application seeking determination of rent under Sec.13(3) of the Act. I have perused the documents and in my opinion there was no necessity for the Court to have allowed petitioners to cross-examine the witnesses with reference to the affidavits filed by them. Counter affidavits were filed and on such matters it is suffi- cient for the Court to consider the material available on record and decide the matter. The power of the Court to call the deponents for cross-examination must only be exercised when the Court is convicted that in the interest of justice such a course is necessary. Counter affidavits were filed and on such matters it is suffi- cient for the Court to consider the material available on record and decide the matter. The power of the Court to call the deponents for cross-examination must only be exercised when the Court is convicted that in the interest of justice such a course is necessary. In the instant case, the learned trial court found no ground to exist justifying exercise of the discretion of the Court. I see no reason to interfere with this finding. Regarding the Second ground relating to the bar of resjudicata, learned counsel for the petitioners tried to distinguish the present case on the ground that the first application was not decided by the trial court on merits. When the first matter is not delt with on merits and the same is dismissed or disposed of on a technical ground, there is no bar to file secound application which will not be barred by the principle of resjudicata. I find no force in this contention. A perusal of the order shows that the previous order was passed on the merits. While examining the application filed by the petitioners, the Court came to the conclusion that since the petitioners did not specify the contradictions regarding which the above permission was sought, the application was not maintainable. Such decision was definitely on the merits of the application. In Bundu vs. Harshmals case, this Court, relying on Satynadhavan vs. Smt. Deoragin Devi, held that a previous order passed on an application disposing of the same will operate as resjudicata and the plaintiff would be precluded from reagitating the matter second time. Hence, on ground of resjudicata also the above application was not maintainable. (8) In the result,I find no substance in the petition and it is hereby dismissed.