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2001 DIGILAW 810 (PNJ)

Mari @ Madi v. Matadin

2001-08-03

R.C.KATHURIA

body2001
JUDGMENT R.C. Kathuria, J. (Oral) - This revision petition is directed against the order dated April 23, 2001 passed by the Civil Judge (Junior Division), Gurgaon, whereby written statement filed by defendant-respondent No. 2 was ordered to be treated as the written statement of the defendant-petitioner as well and the suit was posted for rebuttal evidence and arguments. 2. Plaintiff-respondent No. 1 had filed a suit for possession of the land measuring 22 Kanals 17 Marlas situated within the revenue estate of Farrukh Nagar, Tehsil and District Gurgaon. The averments of the plaintiff-respondent No. 1 were that the land in dispute had been given by him on licence to Chhutan son of Maman resident of Farrukh Nagar for rendering services to the Dharamshala and for running a "Piao (water-serving place). After the death of Chhutan, according to the stand of the plaintiff-respondent No. 1, Rajesh, defendant-respondent No. 1 had taken possession of the land in an illegal manner. The plaintiff, in order to avoid further complication, terminated the licence of defendant-respondent No. 2 only. The suit was resisted by defendant-respondent No. 2 on the plea that the defendant-petitioner had already acquired occupancy rights in the suit land and for that reason suit was not maintainable in the present form. It was also pleaded by the defendant-respondent No. 2 that under a Civil Court decree in the suit titled Smt. Mari and another v. Matadin, relationship of landlord and tenant between the parties to the suit had been upheld by the Court. The defendant- petitioner Smt. Mari had also filed a suit for declaration claiming herself to be an occupancy tenant of the land in dispute and the same was decreed. It was also pleaded by the defendant-respondent No. 2 Rajesh that he and defendant-petitioner Smt. Mari are the legal heirs of said Chhutan. 3. In view of the above stand of the defendant-respondent No. 2 plaintiff- respondent No. 1 filed an application under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code) in order to implead the defendant-petitioner as a party-defendant. This application was allowed by the trial Court and the case was adjourned to April 23, 2001 for filing of written statement by the defendant-petitioner. This application was allowed by the trial Court and the case was adjourned to April 23, 2001 for filing of written statement by the defendant-petitioner. On April 23, 2001, the trial Judge, on the request of counsel for the defendant-petitioner, directed that the written statement filed by the defendant-respondent No. 2 Rajesh be treated as the written statement of the defendant-petitioner Smt. Mari and adjourned the case to May 14, 2001 for rebuttal evidence and arguments. 4. I have heard the learned counsel for the petitioner-defendant. 5. The only grievance made by the learned counsel is that though Smt. Mari had adopted the written statement filed by Rajesh, defendant-respondent No. 2, it was the duty of the trial Court to have afforded an opportunity to her to lead evidence in support of the stand taken by her. He has also pointed out that at no stage of the proceedings, the defendant-petitioner had given any statement that she was not to lead any evidence. The stand taken from the side of the defendant-petitioner is borne out from the order dated April 23, 2001 because on that date the case was straightaway posted for rebuttal evidence and arguments. After the defendant-petitioner having been impleaded as a party-defendant to the suit, it was the duty of the trial Judge to have afforded her an opportunity to produce evidence. Having not done so, the impugned order, to that extent, cannot be sustained. Accordingly, this revision petition is allowed to the extent that order of the trial Judge dated April 23, 2001, fixing the case for rebuttal evidence and arguments without giving an opportunity to the defendant-petitioner to lead evidence, is set aside and it is directed that the petitioner-defendant will be given adequate opportunity to produce her evidence. 6. The other prayer made in the revision petition is that after the defendant-petitioner was impleaded as a party to the suit, an opportunity should have been granted to her to cross-examine the plaintiff-respondent No. 1 by recalling him to the witness box. It appears that no such request was made by the defendant-petitioner before the trial Judge. Therefore, this question cannot be adjudicated in the revision petition. This revision stands disposed of, as indicated above. Order accordingly.