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Himachal Pradesh High Court · body

2016 DIGILAW 2530 (HP)

SHYAM LAL v. TECHNICO AGRCIENCES LIMITED

2016-11-30

P.S.RANA

body2016
ORDER : 1. Present petition is filed under Article 227 of Constitution of India for quashing order dated 12.3.2014 passed by learned Civil Judge (Junior Division) Court No. II Nalagarh District Solan in CMP No. 37/6 of 2014 filed under Order 16, Rule 14 CPC in civil suit No. RBT 318/1 of 2009 title M/s. Technico Agri. Sciences Limited v. Shyam Lal and others. Brief facts of the case. 2. Plaintiff M/s. Technico Agri. Sciences Limited filed civil suit for specific performance of contract dated 23.9.2000 directing co-defendants No. 1 to 7 to execute sale deed and deliver possession of suit land. Consequential relief of permanent injunction restraining co-defendants Nos. 1 to 7 from transferring suit land to any person except plaintiff or to create any charge on suit land also sought. It is pleaded that Goverdhan predecessor-in-interest of co-defendants Nos. 1 to 7 through co-defendant No. 8 executed sale contract with plaintiff in consideration amount of Rs. one lac seventy five thousand two hundred only on dated 23.09.2000. It is pleaded that plaintiff paid a sum of Rs. one lac seventy five thousand two hundred on 23.9.2000 as full and final sale consideration amount relating to suit land. It is pleaded that co-defendants Nos. 1 to 7 are legal heirs of Goverdhan previous owner of suit land. It is pleaded that Goverdhan previous owner of suit land entered into an agreement of sale of suit land through general attorney co-defendant No. 8 Pramod Sharma. It is pleaded that plaintiff requested co-defendants Nos. 1 to 7 to execute sale deed in favour of plaintiff company but co-defendants Nos. 1 to 7 flately refused to execute sale deed in favour of plaintiff company. It is pleaded that Goverdhan and after his death his legal heirs co-defendants No. 1 to 7 failed to comply the terms and conditions of agreement of sale dated 23.9.2000. Prayer for decree the suit as mentioned in relief clause of plaint sought. 3. Per contra written statement filed on behalf of co-defendants Nos. 1 to 7 pleaded therein that suit of plaintiff is not maintainable and plaintiff has no cause of action and locus standi to file present suit against co-defendants Nos.1 to 7. It is pleaded that co-defendant No. 8 was not appointed as general attorney by Goverdhan to sell suit land to plaintiff. 1 to 7 pleaded therein that suit of plaintiff is not maintainable and plaintiff has no cause of action and locus standi to file present suit against co-defendants Nos.1 to 7. It is pleaded that co-defendant No. 8 was not appointed as general attorney by Goverdhan to sell suit land to plaintiff. It is pleaded that alleged general power of attorney is illegal, fraudulent and fabricated document and is not binding upon co-defendants Nos. 1 to 7. It is pleaded that agreement dated 23.9.2000 is not legally enforceable. It is pleaded that Shri Goverdhan did not receive any consideration amount from plaintiff at any point of time qua alleged sale. It is pleaded that alleged agreement dated 29.9.2000 is without consideration. It is pleaded that plaintiff is co-owner in possession of suit land to the extent of half share and suit land is joint between plaintiff and co-defendants Nos. 1 to 7 and has not been partitioned by metes and bounds. It is pleaded that present civil suit is barred by time and plaintiff is estopped to file present suit by his act, conduct and acquiescence. 4. Co-defendants Nos. 1 to 7 also filed counter claim against plaintiff for granting decree of permanent injunction restraining plaintiff his agents and associates from changing the nature, character of suit land and restraining plaintiff from raising any type of construction over suit land till suit land is not partitioned in accordance with law. 5. Written statement also filed on behalf of co-defendant No. 8. Co-defendant No. 8 admitted that Shri Goverdhan entered into an agreement of sale of suit land and received full and final sale consideration amount. It is pleaded that late Shri Goverdhan executed valid and legal general power of attorney in favour of co-defendant No. 8. It is pleaded that agreement of sale is legal and valid and is binding upon co-defendants Nos. 1 to 7. It is pleaded that M/s. Deepak Spinners Limited actually paid the full and final amount of land to Goverdhan and legal heirs of Goverdhan are legally bound to execute sale deed in favour of plaintiff. Prayer for decree of suit of plaintiff sought by co-defendant No. 8. 6. Plaintiff filed replication and also filed written statement to the counter claim. 7. As per pleadings of parties learned Trial Court framed following issues on dated 12.11.2010:- 1. Prayer for decree of suit of plaintiff sought by co-defendant No. 8. 6. Plaintiff filed replication and also filed written statement to the counter claim. 7. As per pleadings of parties learned Trial Court framed following issues on dated 12.11.2010:- 1. Whether Shri Goverdhan son of Shri Ram Saroop executed power of attorney in favour of co-defendant No. 8? OPP 2. Whether Shri Goverdhan predecessor-in-interest of co-defendants Nos. 1 to 7 executed a legal and valid agreement dated 23.9.2000 in favour of the plaintiff as alleged? OPP 3. Whether plaintiff is ready and willing to perform his part of contract? OPP 4. Whether plaintiff is entitled for specific performance of contract as prayed? OPP 5. Whether suit is not maintainable? OPD 6. Whether plaintiff has no locus standi and cause of action to file present suit? OPD 7. Whether suit is barred by time? OPD 8. Whether plaintiff is estopped by his act and conduct to file present suit? OPD 9. Whether co-defendants Nos. 1 to 7-counter claimants are entitled for relief of permanent prohibitory injunction as prayed? OPD 10. Whether counter claim is not maintainable? OPD changed to OPP by High Court 11. Whether counter claimant has no cause of action to file counter claim? OPD changed to OPP by High Court 12. Relief. 8. Thereafter learned Trial Court listed the case for evidence. On 20.5.2013 learned Trial Court closed evidence of co-defendant No. 8 by order of Court. Learned Trial Court held that co-defendant No. 8 did not adduce any evidence despite several opportunities granted to co-defendant No. 8. 9. Thereafter application under Order 16, Rule 14 CPC filed by plaintiff pleaded therein that plaintiff filed present civil suit for specific performance of contract as per agreement executed by general attorney of late Shri Goverdhan predecessor-in-interest of co-defendants No. 1 to 7. It is pleaded that evidence of co-defendant No. 8 i.e. Parmod general attorney of Goverdhan closed by order of Court. It is pleaded that plaintiff could not put document to co-defendant No. 8 in cross examination and valuable right of plaintiff suffered badly. It is pleaded that examination of co-defendant No. 8 Pramod is essential in deciding the controversy between the parties. It is pleaded that plaintiff wants to examine co-defendant No. 8 Pramod. Prayer for acceptance of application filed under Order 16, Rule 14 CPC sought. 10. It is pleaded that examination of co-defendant No. 8 Pramod is essential in deciding the controversy between the parties. It is pleaded that plaintiff wants to examine co-defendant No. 8 Pramod. Prayer for acceptance of application filed under Order 16, Rule 14 CPC sought. 10. Per contra response filed on behalf of co-defendants Nos. 1 to 7 pleaded therein that plaintiff has to prove its case independently and it is further pleaded that co-defendant No. 8 has admitted case of plaintiff in written statement and it is pleaded that application filed under Order 16, Rule 14 CPC be dismissed. 11. Learned Trial Court held that provision of Order 16, Rule 14 CPC are not applicable. Learned Trial Court permitted plaintiff to put certain documents to co-defendant No. 8 under Section 151 CPC. Learned Trial Court summoned co-defendant No. 8 as plaintiff witness in rebuttal evidence for 9.4.2014. 12. Feeling aggrieved against order of learned Trial Court present petition under Article 227 of Constitution of India is filed. 13. Court heard learned Advocate appearing on behalf of petitioners and learned Advocate appearing on behalf of corespondent No. 1 and Court also perused entire record carefully. 14. Following points arises for determination in present petition:- Point No. 1 Whether petition filed under Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? Point No. 2 Relief. Findings upon point No. 1 with reasons 15. Submission of learned Advocate appearing on behalf of petitioners that learned Trial Court has committed material irregularity by way of permitting plaintiff to examine co-defendant No. 8 in rebuttal evidence under Section 151 CPC is decided accordingly. It is well settled law that inherent power under Section 151 CPC should be exercised by Court for purpose of doing justice according to law to do right and to undo wrong in the course of administration of justice. It is well settled law that inherent power is a special power granted to the Courts and it is also well settled law that inherent power should not be exercised under Section 151 CPC where party has alternative remedy available in Code of Civil Procedure 1908. See AIR 1970 SC 997 Nainsingh v. Koonwarjee and others. 16. It is well settled law that inherent power is a special power granted to the Courts and it is also well settled law that inherent power should not be exercised under Section 151 CPC where party has alternative remedy available in Code of Civil Procedure 1908. See AIR 1970 SC 997 Nainsingh v. Koonwarjee and others. 16. It is well settled law that rebuttal evidence under Order 18, Rule 3 of Code of Civil Procedure 1908 is allowed when there are several issues to be proved by each party. In present case it is proved on record that onus to prove issues Nos. 1 to 4 was placed by learned Trial Court upon plaintiff. It is also proved on record that onus to prove issues Nos. 5 to 9 was placed by learned Trial Court upon defendants in Civil suit No. 318/1 of 2009. It is proved on record that plaintiff closed its entire evidence on 13.3.2012. Statement of learned Advocate appearing on behalf of plaintiff was recorded by learned Trial Court and learned Advocate appearing on behalf of plaintiff has given statement that he closed evidence on behalf of plaintiff on 13.3.2012. Learned Advocate appearing on behalf of plaintiff did not state that he closed the evidence on behalf of plaintiff in affirmative only. Operative part of statement of learned Advocate appearing on behalf of plaintiff is quoted in to: "I close evidence on behalf of plaintiff." Sd/- Sd/- Plaintiff Advocate Civil Judge (Jr. Division)-II Nalagarh District Solan HP On 13.3.2012 learned Advocate for the plaintiff did not reserve right of rebuttal evidence on behalf of plaintiff in civil suit No. 318/1 of 2009. 17. It is well settled law that under Order 18, Rule 3 CPC plaintiff has to give option to adduce rebuttal evidence before commencement of defendants evidence. It is well settled law that if plaintiff did not give option to adduce rebuttal evidence under Order 18, Rule 3 CPC before commencement of defendants evidence then plaintiff cannot adduce rebuttal evidence under Order 18, Rule 3 CPC. See AIR 1969 Andhra Pradesh 82, Illapu Nookalamma v. Illapu Simchachalam. See AIR 1971 Mysore 17, S. Chandra Keerti v. Abdul Gaffar and others. 18. In present case plaintiff did not reserve its right of rebuttal evidence when plaintiff closed its evidence on 13.3.2012. See AIR 1969 Andhra Pradesh 82, Illapu Nookalamma v. Illapu Simchachalam. See AIR 1971 Mysore 17, S. Chandra Keerti v. Abdul Gaffar and others. 18. In present case plaintiff did not reserve its right of rebuttal evidence when plaintiff closed its evidence on 13.3.2012. However learned Trial Court on 12.3.2014 allowed plaintiff to adduce rebuttal evidence while exercising special inherent power under Section 151 CPC. Co-defendant No. 8 namely Parmod alleged GPA of deceased Goverdhan admitted contents of agreement dated 23.9.2000 in favour of plaintiff in written statement. Co-defendant No. 8 namely Pramod also admitted execution of GPA by Goverdhan in written statement placed on record. Co-defendant No. 8 has pleaded in written statement that suit of plaintiff be decreed. It is held that interest of plaintiff and interest of co-defendant No. 8 namely Pramod are same. It is held that there is no conflict of interest between plaintiff and co-defendant No. 8 Pramod. It is held that there is no conflict issue between plaintiff and co-defendant No. 8. 19. It is well settled law that under Order 16, Rule 14 CPC Court may summon any person as Court witness of its own motion whose evidence appears to Court necessary for adjudication of controversy inter se parties. Point No. 1 is decided accordingly. Point No. 2 (Relief) 20. In view of findings upon point No. 1 order of learned Trial Court dated 12.3.2014 is set aside and matter is remanded back to learned Trial Court with direction to decide CMP No. 37/6 of 2014 filed under Order 16, Rule 14 read with Section 151 CPC afresh in accordance with law. Parties are directed to appear before learned Trial Court on 20.12.2016. Since civil suit is pending since 2009 learned Trial Court is directed to dispose of civil suit expeditiously within two months after receipt of file. Observations will not effect merits of case in any manner. Parties are left to bear their own costs. File of learned Trial Court along with certified copy of order be sent back forthwith. CMPMO No. 176 of 2014 is disposed of. Pending miscellaneous application(s) if any also stands disposed of.