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2018 DIGILAW 868 (HP)

Rajiv Kant v. Govind Singh Pathania

2018-05-10

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J —The order dated 21.08.2017, Annexure P-3, passed by learned Civil Judge (Jr. Division) , Nurpur, Distt. Kangra (H.P.) , is under challenge in this petition. This order reads as follow:- "21.08.2017. Present: Shri S.C. Puri, Adv. for the plaintiff. Shri M.S. Chauhan, Adv. for defendants. PW Shri N.K. Sharma, Advocate, present and examined. Evidence of plaintiff closed vide separate statement recorded and placed on record. Now to come up for final arguments on 13.9.2017." 2. Admittedly, PW Naresh Kumar Sharma, was produced in evidence by the plaintiff-respondent at a stage when the parties on both sides had produced their respective evidence on an order dated 17.08.2017, Annexure P-3 (Colly) , passed in an application under Section 151 CPC. Learned trial Court should have granted opportunity to the petitioners-defendants to produce evidence in rebuttal to the evidence as has come on record by way of the statement of Sh. Naresh Kumar Sharma, aforesaid. As a matter of fact, while allowing the application under Section 151 CPC vide order dated 17.08.2017 ibid, learned trial Court has itself observed that in case the application filed by the respondent-plaintiff Govind Singh is allowed, he will have to prove the documents sought to be placed on record in accordance with law and in that event, the petitioners herein (defendants in the trial Court) , will also not be taken in surprise as they will also be given the opportunity to rebut the documents produced in evidence by the respondent-plaintiff. The relevant portion of the order so passed by learned trial Court, reads as follow:- "I am of the considered view that since these documents i.e. rent receipts could not be procured by the applicant earlier as it has been averred in the application which is supported by an affidavit that due to heavy flood ensued in the Month of August, 2016 they were washed away and further allowing this application would cause no prejudice to the rights of the replying respondents/ defendants as still after this application is allowed the applicant has to prove these documents so placed on record in accordance with the provision of law. It cannot be said that the respondents are taken by surprise as a chance to rebut these documents will also be given to the respondents." 3. It cannot be said that the respondents are taken by surprise as a chance to rebut these documents will also be given to the respondents." 3. It is on 21.08.2017, the day when impugned order has been passed, PW Naresh Kumar Sharma, Advocate, was examined by the respondent-plaintiff consequent upon the order ibid passed in the application under Section 151 CPC. However, instead of allowing the petitioners-defendants an opportunity to produce rebuttal evidence, learned trial Court has straightway fixed the civil suit for final arguments. The impugned order, as such, is contrary to the order dated 17.08.2017, Annexure P-3 (Colly) , passed by learned trial Court in an application under Section 151 CPC, filed by respondent-plaintiff Govind Singh. As a matter of fact, the trial Court has failed to afford an opportunity to the petitioners-defendants to produce the evidence in rebuttal to the evidence produced by the respondent-plaintiff by way of examining PW Naresh Kumar Sharma, Advocate. Such an approach in the matter, is not at all appreciated. The impugned order, as such, is not legally sustainable and the same is accordingly quashed and set aside. 4. Consequently, this petition is allowed. The case, however, is remanded to learned trial Court to fix a date for producing the evidence in rebuttal to the evidence as has come on record by way of testimony of PW Naresh Kumar Sharma, Advocate and to decide the same thereafter by taking on record such evidence. It is made clear that only one opportunity should be granted for the purpose. 5. The parties, through learned counsel representing them, are directed to appear before the trial Court on 30th June, 2018. The petition is accordingly disposed of, so also the pending application(s) , if any. An authenticated copy of this Judgment be sent to learned trial Court, for compliance.