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2010 DIGILAW 1629 (RAJ)

Ratan Lal v. Devi Bai

2010-09-20

SANGEET LODHA

body2010
Hon'ble LODHA, J.—This writ petition is direct against order dated 17.11.2008 (Annexure 5) and dated 9.3.2009 (Annexure 7) passed by the District Judge, Rajsamand in Civil Suit No. 86/2008. By order dated 17.11.2008, the Trial Court directed the parties to remain present for examination of the parties under Order X of CPC and by order dated 9.3.2009, an application preferred by the petitioner/plaintiff seeking leave to amend the plaint, stands rejected. 2. The petitioner/plaintiff filed a suit for cancellation of sale deed and permanent injunction against the respondents/defendants. The suit is being contested by the defendant No. 1, the respondent No. 1 herein, by filing a written statement thereto. 3. On an application being preferred by the petitioner/plaintiff seeking temporary injunction, vide order dated 27.8.2008 the Trial Court directed both the parties to maintain the status quo at the site regarding the disputed property so also in the revenue record. On 27.8.2008, the petitioner submitted application for appointment of Commissioner for local investigation so as to bring the correct factual position at the site on record. The application was allowed by the trial Court vide order dated 5.9.2008 and in pursuance there of, the commissioner appointed by the Court below inspected the site on 5.2.2009. It is alleged that during the pendency of the application for appointment of the Commissioner, the respondent taking advantage of the situation, forcefully dispossessed the petitioner and put her name plate on the gate of the land in dispute and the room existing on the land was also occupied by the respondents by putting her articles therein. In these circumstances, the petitioner/plaintiff preferred an application seeking leave to amend the plaint which was contested by the respondent/defendant No. 1 by filing a reply thereto. 4. It is submitted that on 17.11.2008, the Trial Court suo moto directed for examination of the parties under Order X Rule 2, CPC. The statements of the respondent/defendant No. 1 and the petitioner/plaintiff were recorded by the Court below on 11.2.2009 and 25.2.2009 respectively. 5. The application preferred by the petitioner/plaintiff seeking leave to amend the plaint has been rejected by the Trial Court by the order impugned on the ground that the amendment sought for by the petitioner/plaintiff runs contrary to his statement recorded under Order X Rule 2, CPC. 5. The application preferred by the petitioner/plaintiff seeking leave to amend the plaint has been rejected by the Trial Court by the order impugned on the ground that the amendment sought for by the petitioner/plaintiff runs contrary to his statement recorded under Order X Rule 2, CPC. Noticing the categorical admission of the plaintiff in his statement under Order X Rule 2, CPC that he had given possession of the land to the defendant Smt. Devi Bai after taking a loan of Rs. 1 lac and thereafter, he never remained in possession, the Court observed that it cannot be believed that the defendant had taken possession of the disputed land forcefully during the pendency of the suit. The Trial Court also noticed that even as per the sale deed produced on record, the possession was delivered by the petitioner/plaintiff to the respondent/defendant No. 1. Accordingly, the Court opined that the amendment sought for is not necessary for just decision of the controversy involved in the suit. However, yet another application preferred by the petitioner/plaintiff under Order VII Rule 11, CPC seeking leave to produce the video recording of the position of the disputed land at the site as on 28.8.2008 and 9.9.2008 was allowed and the videos produced were permitted to be taken on record. Hence, this petition. 6. It is contended by the learned counsel for the petitioner that the Trial court has seriously erred in relying upon the sale deed in question so also the statement of the petitioner recorded under Order X Rule 2, CPC so as to arrive at the conclusion that the petitioner/plaintiff was not in possession of the land at the time of filing of the suit. Learned counsel submitted that the sale deed itself is under challenge therefore, the same could not have been relied upon so as to ascertain the fact as to whether the petitioner/plaintiff has been dispossessed from the land in question during the pendency of the suit or not. Learned counsel submitted that the manner in which the Trial Court has recorded the statement of the parties runs contrary to the provisions of Order X Rule 2, C.P.C. learned counsel submitted that the provisions of Order X Rule 2, CPC for examining the parties can be invoked by the Trial Court only if the matter does not stand clarified after hearing the counsel for the petitioner. In support of his contention, learned counsel has relied upon a decision of this Court in Achal Singh vs. Asharam 1983 RLW 103, decisions of Punjab and Haryana High Court in Sarwan Singh vs. Onkar Singh & Ors., 2010(1) CCC 231 (P & H) and Shri Saraswati Spinning Mills, Bhiwani vs. M/s. Gheru Lal Bal Chand, Abohar, AIR 1981 P & H 299. Learned counsel submitted that Order X Rule 2 CPC is intended to be used by the Trial Court only when it is found necessary to obtain from a party information on any material question relating to the suit and ought not to be employed so as to supercede ordinary procedure in the trial as prescribed under Order XVII of CPC. In support of his contention, learned counsel has relied upon a decision of the Privy Council in Manmohan Das & Ors. vs. Mt. Ramdei & Anr., AIR 1931 Privy Council 175. Learned counsel submitted that the statement under Order X Rule 2, CPC cannot take place of statement on oath and it cannot be given the status of an admission which may be conclusive. In this regard, learned counsel has relied upon a decision of Allahabad High Court in Sheer Singh & Ors. vs. Prithi Singh & Ors., AIR 1975 Allahabad 259. Learned counsel further submitted that the statement made under Order Rules 1 and 2, CPC the parties are entitled to point out that the mistake made by him under misapprehension of fact. In support of his contention, learned counsel has relied upon a decision of the Allahabad High Court in Kailash Chandra vs. Ratan Prakash, AIR 1974 Allahabad 138. Lastly, learned counsel submitted that the order passed by the Trial Court is self contradictory inasmuch as by the self same order, the application preferred by the petitioner under Order VII Rule 14, CPC seeking leave to produce the documents showing the change of the status of the land during the pendency of the suit has been allowed. Accordingly, it is submitted by the learned counsel that the Court below has committed jurisdictional error in recording the statement of the parties on oath under Order X Rule 2 of CPC so also in rejecting the application preferred on behalf of the petitioner/plaintiff seeking leave to amend the plaint. 7. Accordingly, it is submitted by the learned counsel that the Court below has committed jurisdictional error in recording the statement of the parties on oath under Order X Rule 2 of CPC so also in rejecting the application preferred on behalf of the petitioner/plaintiff seeking leave to amend the plaint. 7. On the other hand, learned counsel appearing for the respondents submitted that no illegality is committed by the Court below in recording the statement of the parties under Order X Rule 2 CPC. Learned counsel submitted that the unequivocal admission of the respondents/plaintiffs before the Trial Court in his statement under Order X Rule 2 CPC falsifies the stand sought to be taken by the petitioner/plaintiff by way of amendment of the plaint in terms that he has been dispossessed from the land in question during the pendency of the suit. Learned counsel submitted on the facts and in the circumstances of the case, noting the categorical admission of the plaintiff regarding possession being handed over to the defendant No. 1 at the time of taking alleged loan of Rs. 1 lac by itself sufficiently establishes that the petitioner/plaintiff was not dispossessed from the land in question during the pendency of the suit as alleged, therefore, the Court below has committed no error in declining the leave to amend the plaint so as to incorporate apparently false averments in the plaint. Learned counsel submitted that statement of a party, its counsel or agent under Order X Rule 2, CPC is for all practical purposes pleading and its binding on the party who makes it or whose behalf it is made. In support of his contention, learned counsel has relied upon decisions of Allahabad High Court in Miss Fatima Hasan vs. His Highness Nawab Syed Murtaza Ali Khan Sahib Bahadur & Ors., AIR 1997 Allahabad 122 and Rasheed Ahmed vs. Karima Khatoon & Ors. AIR 2002 Allahabad 195. 8. I have considered the rival submissions and perused the material on record. 9. Indisputably, Order X Rule 1 CPC empowers the Court to examine the parties or its pleader at the first hearing of the suit so as to ascertain whether he admits or denies such allegations of fact in the plaint of written statement of the opposite party which are not expressly or by necessary implication admitted or denied by the party against whom they are made. Precisely, the purpose behind the said provision is to discern the real points in controversy between the parties. 10. Order X Rule 2 confers discretionary power upon the Court to examine parties to the suit or his companion who is able to answer any material questions relating to the suit at the first hearing or at any subsequent hearing. A perusal of the provisions makes it abundantly clear that the examination thereunder is not limited to any specific allegation in the pleadings. But then, under the said provision as well, the examination is permitted to be made for ascertaining the real points in controversy between the parties and not to take evidence in the case. This further stands clarified by provisions of Order X Rule 3 which provides that the substance of examination shall be reduced to writing by the Judge which shall form part of the record. 11. In Achal Singh's case (supra), this Court held that under Order X Rule 1, first the statement of the Counsel for the party may be examined and in case, the matter is not clarified or the signatures have to be ascertained then the party may be called for examination. 12. Similarly, in Sarwan Singh's case (supra), the Punjab and Haryana High Court held that when a party is represented by a counsel, then opportunity is to be provided to the counsel for the party to answer the questions and in case the counsel is unable to answer the questions, the Court can direct the party to appear in person and on his failure to appear, the Court can resort to the provisions of Order X Rule 4(2) of CPC and may struck off his defence. 13. In Saraswati Spinning Mill's case (supra), the Punjab and Haryana High Court held that the admission and denial is generally done by the counsel for the parties and it is only when counsel is unable to do so thee necessity arises for summoning the party himself in person. 14. 13. In Saraswati Spinning Mill's case (supra), the Punjab and Haryana High Court held that the admission and denial is generally done by the counsel for the parties and it is only when counsel is unable to do so thee necessity arises for summoning the party himself in person. 14. In Vishnu Kumar vs. State Bank of Bikaner & Jaipur, AIR 1976 Rajasthan 195, this Court held that where the party is represented by a duly authorized and instructed counsel then the counsel should be initially examined under the provisions of Order X Rule 1 and 2 and if after the examination the Court feels that further elucidation is still necessary, then orders could be isused under the provisions of Order X Rule 4, CPC. The Court categorically held that the order directing the party to appear in person without examining the duly authorized and instructed counsel appearing on his behalf is clearly in contravention of Order X Rule 2 and an illegal exercise of jurisdiction. 15. In Manmohan Das's (supra), the Privy Council while examining the scope of the power under Order X Rule 2 CPC observed that it is contended to use by the judge only when he finds it necessary to obtain from a party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinarily procedure at trial as prescribed in Order XVIII. 16. Adverting to the facts of the present case, it is to be noticed that in the instant case, vide order dated 17.11.2008 the Court suo moto straight away directed the parties to remain present on the next date for examination under Order X CPC. The order passed as aforesaid does not reflect that the Court after application of the mind found that the oral examination of the parties is necessary for elucidating matter in controversy in the suit. It is not in dispute that before directing the parties to remain present for examination under Order X, no attempt was made by the Court so as to obtain necessary information from the counsel appearing for the parties and ascertain the real points in controvers in the suit. It is not in dispute that before directing the parties to remain present for examination under Order X, no attempt was made by the Court so as to obtain necessary information from the counsel appearing for the parties and ascertain the real points in controvers in the suit. That apart, a perusal of the statements of the parties recorded reveal that the Court has examined the parties on oath in detail in various factual aspects of the matter which run contrary to the provisions of Order X Rule 3 CPC. which provides that on such examination, only substance of the examination is required to be reduced in writing by the Court. Thus, in considered opinion of this Court, the Court below has committed a jurisdictional error in not following the procedure laid down under Order X Rules 1, 2 and 3 C.P.C. 17. Coming to the rejection of the application preferred by the petitioner/plaintiff seeking leave to amend the plaint, it is to be noticed that the application has been rejected solely on the ground that the averments sought to be incorporated in the plaint by way of amendment runs contrary to the statement of the petitioner/plaintiff under Order X Rule 2 C.P.C. and therefore, the amendment sought for is not necessary for just decision of the suit. In view of the findings arrived at as aforesaid by this Court that the statements of the parties recorded are not in conformity with the provisions of Order X, CPC and the Court below has committed a jurisdictional error in not following the procedure, the reasons assigned for rejection of the amendment application also do not survive and therefore, the order impugned rejecting the application seeking amendment also deserves to be set aside. 18. In the result, the writ petition succeeds; it is hereby allowed. The order impugned rejecting the application seeking leave to amend the plaint filed by the petitioner/plaintiff is set aside. If the Court below considers it necessary to obtain the necessary information so as to ascertain the real points in controversy in the suit, it may take the appropriate proceedings in conformity with provisions of Order X in the manner discussed above. The application preferred by the petitioner/plaintiff seeking leave to amend the plaint shall be considered by the Court below afresh on its own merits in accordance with law. No order as to costs.