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2016 DIGILAW 226 (RAJ)

Madan Lal v. Anju Bang

2016-02-09

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 31.10 2011 passed by the trial Court, whereby, the petitioner's application under Order 10, Rule 1 CPC has been rejected. 2. The petitioner filed a suit tor declaration and cancellation of sale deed, which was responded to by defendants No.1 and 2; where after the present application was filed by the petitioner seeking a direction for examination of defendants by the Court under Order 10, Rule 1 CPC. 3. The application was resisted by the defendants and the trial Court after hearing the parties came to the conclusion that there were several such aspects in the case, whose disposal can only be done after issues are framed and evidence is recorded and on account of the said situation as the application under Order 8, Rule 9 CPC has also been allowed, it was not justified to examine the defendants and, consequently, dismissed the application. 4. It is submitted by learned counsel for the petitioner with reference to the application filed under Order 10, Rule I CPC that the written statement filed by the defendants is vague; several averments made in the plaint have either not been answered and if answered the same have been answered in a vague form and, therefore, the application was filed by the petitioner pointing out the said aspects; it is submitted that the trial Court should have called the defendants for examination so as to narrow down the controversy in the case and as the Court has failed to exercise its jurisdiction, the order impugned deserves to be quashed and set aside. 5. Reliance was placed on Bhanwarlal Kavad & Ors. v. Shyamsunder & Ors., AIR 1984 Raj. 113 , Vikas Aggarwal v. Anubha, (2002) 4 SCC 468 and A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, 2012 AIR SCW 3017. 6. 5. Reliance was placed on Bhanwarlal Kavad & Ors. v. Shyamsunder & Ors., AIR 1984 Raj. 113 , Vikas Aggarwal v. Anubha, (2002) 4 SCC 468 and A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, 2012 AIR SCW 3017. 6. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner; it was submitted that the defendants have filed a clear and categorical written statement and there is no requirement for examination of defendants by the Court; it is submitted that either the written statement filed by the respondents may not be to the liking of the petitioner, however, the same cannot be a reason for examination of the defendants; the issues involved in the matter would be framed and parties would be examined and there does not appear to any reason for the examination of the defendants at this stage and, therefore, the trial Court was justified in dismissing the application. 7. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. The provisions of Order 10 CPC confers on the Court power to examine parties with a view to ascertain the real points in controversy between them and to get admissions from them, so as to eliminate irrelevant issues and evidence and thereby shorten the trial. 9. In the present case, once the written statement was filed, the petitioner filed the application, pointing out several aspects of the matter, which in the opinion of the plaintiff required clarification by the defendants so as to narrow down the controversy; however, a look at the application in relation to the plaint and written statement reveals that though the petitioner has tried to highlight lack of coherence in the written statement, the same does not appear to be correct; the defendant has answered the plaint in a manner, which according to the defendants is in their best interest and the plaintiff cannot seek answer to the averments made in the plaint in a particular manner. 10. 10. In view of the fact that petitioner has been granted permission to file replication and the position of the pleadings is not such, which could narrow down the controversy by examination of the parties and it can be observed that there are several issues, which arise from the pleadings, which require framing of issues and leading of evidence by the parties for their just determination and, as such, the trial Court was justified in coming to the conclusion that no useful purpose would be served by examining the defendants. No interference is called for in the order impugned. 11. So far as the judgments cited by learned counsel for the petitioner are concerned, there is no denying utility of examination of parties under Order 10, Rule 1 CPC as emphasised by the said judgments, however the observations made cannot be applied uniformly to all the cases. As noticed hereinbefore, the circumstances of the case are not such, which can narrow down the controversy by examination of the defendants and, therefore, the said judgments have no application to the facts of the present case. 12. Consequently, there is no substance in the writ petition and the same is, therefore, dismissed.