Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2250 (RAJ)

Kamla Devi v. Rajendra Kumar

2012-12-03

ALOK SHARMA

body2012
JUDGMENT : Alok Sharma, J. By this petition, a challenge has been laid to the order dated 14th September, 2012, whereby the Additional District & Session Judge (Fast Track) No.2, Beawar has dismissed an application filed by the petitioner-defendant no.1 (hereinafter the defendant no.1) in the suit for cancellation of sale deed dated 7th October, 1995 filed by the respondents no. 1 to 6 as plaintiffs (hereinafter the plaintiff). 2. The facts of the case are that the plaintiffs filed a suit for cancellation of sale deed dated 7th October, 1995. On notices on the suit, the written statements were filed by the defendant no.1. Defendants no. 2 and 3 (respondents no. 7 and 8 herein), who are mother and brother of the plaintiffs Rajendra Kumar and Narendra Kumar also filed their written statement and supported the case of the plaintiffs admitting to the entire case in the suit filed by the plaintiff and praying that the reliefs prayed for in the suit be allowed and the suit be decreed. 3. Issues were framed. The plaintiffs having completed their evidence, the defendant no. 1 moved an application under Section 151 of Civil Procedure Code before the trial court praying that the defendants no. 2 and 3 who were fully supporting the case of the plaintiffs be first examined. It was stated that the defendant no.1 is the only true contesting party in the suit and would be able to rebut all evidence in support of the cancellation of sale deed only after all evidence in support of the plaintiffs' case was taken on record. It was submitted that if the defendant no.1 was required to lead his evidence first and defendants no. 2 and 3 thereafter, the said defendants no. 2 and 3 supporting the plaintiffs could modulate their evidence as warranted to the gross prejudice of the defendant no.1. The trial court by the impugned order dated 14th September, 2012 however dismissed the application under Section 151 of Civil Procedure Code. Hence, this petition. 4. Counsel for the petitioner very fairly conceded that the Code of Civil Procedure, 1908 does not provide for the order of leading evidence amongst defendants, more particularly when some defendants support the case of the plaintiffs. But counsel relied upon the judgment of the Orissa High Court in the case of Jhumpa Bewa and Ors. v. Sahadeb Rout and Ors. Counsel for the petitioner very fairly conceded that the Code of Civil Procedure, 1908 does not provide for the order of leading evidence amongst defendants, more particularly when some defendants support the case of the plaintiffs. But counsel relied upon the judgment of the Orissa High Court in the case of Jhumpa Bewa and Ors. v. Sahadeb Rout and Ors. reported in AIR 1987 Ori 209 to contend that the trial court is not to be a mere passive agent in the course of adjudication of the suit. It is submitted that the Presiding Officer is the master of the court's proceedings and is to guide the trial of the suit by actively associating himself being fully aware of the pleadings of the parties as well as nature of the evidence that the parties are expected to adduce before the trial court. It is submitted that in this view of matter, the Orissa High Court has held that courts should in situations as such one obtaining in the present case invoke the rule of prudence and where the court finds that the defendants support the plaintiff's case wholly or in part, it should require such defendants supporting the case of the plaintiffs to be first examined ahead of the contesting defendant/s. It has been held by the Orissa High Court that the order of examination of defendants for leading evidence should be as follows:- (i) Those defendants who fully support the case of the plaintiff; (ii) Those defendants who partly support the case of the plaintiff; (iii) Those defendants who do not support the case of the plaintiff in any part. 5. Counsel for the plaintiffs Mr. O.P. Mishra could not point out any statutory provision or contrary judgment of any court on the order of examination of defendants' witnesses where some of the defendant/s support the case of the plaintiffs. 6. Heard the learned counsel for the parties and perused the petition including the impugned order as also the judgment of the Orissa High Court in the case of Jhumpa Bewa (supra). 7. The Hon'ble Orissa High Court in the case of Jhumpa Bewa (supra) has rightly invoked the rule of prudence in situations where in a suit some defendants wholly or partly support the case of the plaintiffs and held that in such situations, the defendants supporting the case of the plaintiffs should be examined first. 7. The Hon'ble Orissa High Court in the case of Jhumpa Bewa (supra) has rightly invoked the rule of prudence in situations where in a suit some defendants wholly or partly support the case of the plaintiffs and held that in such situations, the defendants supporting the case of the plaintiffs should be examined first. In the case at hand, it is an admitted fact that the defendants no. 2 and 3 before the trial court has wholly supported the case of the plaintiffs and even prayed that the plaintiff's such be decreed. 8. In my considered view, the order dated 14th September, 2012 passed by the trial court dismissing the application under Section 151 of Civil Procedure Code filed by the defendant no.1 is bad for the trial court having eschewed intelligent participation in the proceedings before it and in failing to consider the grave prejudice which would be caused to the defendant no.1 in the event the defendant no.1 were first to be required to bring in his evidence and the evidence of the defendants no. 2 and 3 to be thereafter taken. Section 151 of Civil Procedure Code conferring inherent power in the civil courts has been designed to meet such situations of preventing prejudice to a party in a suit. 9. Consequently, I would allow this petition setting aside the order dated 14th September, 2012 passed by the trial court and direct the trial court to first take on record the evidence of defendants no. 2 and 3 in the suit. The defendant no.1 be required to bring in his evidence only thereafter. 10. At this stage, counsel for the plaintiffs submits that suit no. 110/07 titled as Rajendra & Ors. v. Kamla & Ors. has been pending since 2004 and in this view of matter, the trial court be directed to dispose of the suit within a period of six months from the date presentation of certified copy of this order. Counsel for the defendant no.1 does not object to the prayer. 11. Consequently, the trial court is also directed to dispose of suit no. 110/07 titled Rajendra Kumar & Ors. v. Kamla & Ors. pending before it within a period of six months from the date of presentation of certified copy of this order.