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2018 DIGILAW 1572 (RAJ)

Manmal Oswal v. Ravindra Kumar Oswal

2018-07-25

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition under Article 226 & 227 of the Constitution of India claiming the following reliefs: "1. An appropriate writ direction or order be issued quashing the order dated 19.04.2018 Annex.21) passed by the learned Civil Judge Merta, Dist. Nagaur, and the application filed by the respondent-plaintiff under section 151 CPC may kindly be dismissed. 2. Any other order or direction, which this Hon'ble Court deemed just and proper be passed in favour of the petitioner." 2. Brief facts of this case, as noticed by this Court, are that the respondent-plaintiff filed a suit for mandatory and perpetual injunction and damages against the petitioners defendants. On 17.09.2015 the petitioner-defendant No.1 submitted his affidavit in chief examination, and along with the said affidavit a blue print map was also submitted with form No.3, which was made by the DW 4 Gajdhar Abdul Vail. 3. On 14.07.2016, the respondent-plaintiff filed an application under Order 19 read with section 151 CPC claiming that the petitioner-defendant No.1 had produced the blue print map along with his affidavit and further stated that the said map was not placed on record, and therefore, the same has not been the part of the affidavit. However, the learned court trial Court vide order dated 04.10.2016 has rejected the application under Order 19 read with section 151 CPC filed by the respondent plaintiff. While passing the said order dated 04.10.2016, the learned court below observed that the blue print map was presented to clarify the factual situation of the subject matter and apart from this, no substantial evidence was placed regarding the blue print map in question. The evidence of the defendant was closed by the learned trial court on 22.03.2017 and respondent-plaintiff sought time for rebuttal evidence on which the matter was posted on 21.04.2017 and then on 26.04.2017 for the same purpose. However, no rebuttal was produced by the respondent-plaintiff and the respondent-plaintiff filed an application under Order 26, Rule 9 for appointment of a Commissioner. The said application was rejected with cost of Rs. 500/- but simultaneously last opportunity for rebuttal was granted by the learned trial Court on 10.05.2017. 4. However, no rebuttal was produced by the respondent-plaintiff and the respondent-plaintiff filed an application under Order 26, Rule 9 for appointment of a Commissioner. The said application was rejected with cost of Rs. 500/- but simultaneously last opportunity for rebuttal was granted by the learned trial Court on 10.05.2017. 4. On 18.05.2017 the respondent-plaintiff filed an affidavit in his chief examination and on filing of such affidavit, last opportunity was granted for cross-examination of the respondent and the matter was fixed for 13.07.2017 for the rebuttal evidence of respondent-plaintiff. However, on 13.07.2017, the respondent plaintiff again sought time for producing the rebuttal evidence. The learned trial court again granted time to the respondent plaintiff on 13.07.2017 for rebuttal evidence, only to the extent of the issue No.3 and the matter was posted for 17.08.2017. The further time was sought for the rebuttal evidence and the learned trial court, in the interest of justice, granted last opportunity to the respondent-plaintiff i.e. 24.08.2017. 5. On 14.08.2017, the respondent-plaintiff filed an application under Order 7, Rule 14(3) of CPC for production of certain documents and the said application was allowed with cost of Rs. 1,000/- and the matter was again kept for rebuttal evidence. The learned trial court has closed the rebuttal evidence of the respondent-plaintiff on 12.10.2017. The respondent-plaintiff meanwhile filed an application under Order 18, Rule 17 of CPC for cross-examination of DW-4 Gajdhar Abdul Vakil on the ground that the hindi typed copy of Ex.A/3 clarifies the measurements of the property and the measurement shown by DW-4 Gajdhar Abdul Vail in the map dated 21.07.2015 was contradictory. The said application was rejected by the learned court below vide order dated 10.01.2018. The aforesaid order dated 10.01.2018 was challenged by the respondent-plaintiff by way of filing SB Civil Writ Petition No.2135/2018 before this Hon'ble Court, wherein vide order dated 20.02.2018, this Court allowed the application of the respondent-plaintiff under Order 18, Rule 17 of CPC for cross-examination of DW-4 Gajdhar Abdul Vakil and accordingly, such cross-examination has been done by the respondents. However, in a peculiar fashion, the respondent again moved an application for producing the rebuttal evidence to the map in question. 6. Learned counsel for the petitioner has made a limited submission that after giving so many opportunities for producing rebuttal evidence, the respondent-plaintiff cannot be permitted at this juncture to go ahead with the rebuttal evidence. 7. However, in a peculiar fashion, the respondent again moved an application for producing the rebuttal evidence to the map in question. 6. Learned counsel for the petitioner has made a limited submission that after giving so many opportunities for producing rebuttal evidence, the respondent-plaintiff cannot be permitted at this juncture to go ahead with the rebuttal evidence. 7. Learned counsel for the respondent has however, opposed the aforesaid submission made on behalf of the petitioner on the ground that, only to a limited extent, the rebuttal evidence is to be produced by the respondent-plaintiff, and therefore, the same would not prejudice either of the parties. 8. After hearing counsel for the parties and perusing the record of this case, this Court is of the opinion that the map in question was produced on 17.09.2015 and thereafter, the respondent-plaintiff kept on lingering the matter for very many dates on the limited count of producing rebuttal evidence, but did not do any rebuttal. After a long time, the learned court below closed the rebuttal evidence. However, in the interest of justice, this Court allowed the petitioner to cross-examine DW-4 Gajdhar Abdul Vakil, so as to enable the respondent-plaintiff to avail the opportunity of rebutting the affidavit and map produced on 17.09.2015. Although the application of the respondent-plaintiff for rebutting the map produced on 17.09.2015 has been allowed but even after giving very many number of opportunities for rebuttal, the respondent-plaintiff failed to make any rebuttal. It is apparent that the respondent-plaintiff is trying to prolong the issue, even when he had all the opportunities to file the rebuttal any time after 17.09.2015 on multiple dates. 9. For the foregoing reasons, the writ petition is allowed and the impugned order dated 19.04.2018 is quashed and set aside, and the acceptance of the application by the learned court below under the impugned order is set aside. Further proceedings before the learned court below shall be accordingly conducted.