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2019 DIGILAW 1695 (RAJ)

Sanjeev Kumar Bhargava v. Sneha Lata Chowdhry

2019-05-29

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. By way of this writ petition, the defendant-petitioner assails the order dated 14/02/2018 whereby the application moved by the defendant-petitioner under Order 18 Rule 3 CPC has been rejected by the learned trial court. 2. Brief facts of the case are that the plaintiff-respondent filed an eviction suit against the defendant-petitioner on the ground of default in payment of arrears of rent, nonuser and fixation of standard rent. The suit came to be allowed by the learned trial court vide judgment and decree dated 08/08/1995. First Appeal was preferred by the defendant-petitioner as well as the plaintiff-respondent against the order of the trial court and the High Court vide order dated 15/03/2016 remanded the matter back holding that the entire rent determined provisionally was paid and the benefit of first default was not examined. The plaintiff-respondent submitted an application for amendment in the plaint which was rejected by the learned trial court against which writ petition came to be filed and the High Court allowed the writ petition vide order dated 22/11/2016 granting liberty to the plaintiff-respondent for making amendments. After amendments, the plaintiff-respondent added one ground of personal & bonafide necessity and comparative hardship. The learned trial court proceeded with the matter after amendment and the plaintiff-respondent led his evidence. The same was ordered to be closed on 13/09/2017. The learned trial court had only allowed the plaintiff-respondent to lead evidence to the extent of default and the case was directed to be listed on 19/09/2017. An application came to be filed under Section 151 CPC by the defendant-petitioner mentioning therein that as evidence had been led by the plaintiff-respondent in relation to the additional grounds allowed to have been added by the High Court by way of an amendment, the defendant-petitioner be also allowed to lead evidence in defence thereto which was allowed by the trial court. On 19/12/2017, after the evidence of the defendant-petitioner was closed, the trial court granted a date for rebuttal evidence against which an application was moved by the defendant-petitioner under Order 18 Rule 3 read with Section 151 CPC raising objections with regard to allowing evidence in rebuttal to the plaintiff-respondent which was rejected by order impugned dated 14/02/2018. Feeling aggrieved by the order dated 14/02/2018, the present writ petition has been filed by the defendant-petitioner. 3. Feeling aggrieved by the order dated 14/02/2018, the present writ petition has been filed by the defendant-petitioner. 3. The submission of the defendant-petitioner is that as the plaintiff-respondent had not reserved his right of rebuttal at the time of closing his evidence, he cannot be allowed to lead evidence in rebuttal on the issues for which he had already lead his evidence earlier. Learned counsel for the defendant-petitioner submits that the learned trial court has wrongly rejected the application of the defendant-petitioner and relies on the judgment passed in Jhunthi Devi Vs. Rasool Mithammed and ors. (SB Civil Writ Petition No. 15709/2012, decided by coordinate Bench of this Court vide order dated 29/10/2012. 4. Per-contra, learned counsel for the plaintiff-respondent has filed an application for vacation of the stay wherein facts have been mentioned by the plaintiff-respondent stating that that there has been material concealment of the facts that detailed cross-examination of the witnesses of the plaintiff has already been conducted in rebuttal and the case was fixed for final arguments by the learned trial court and this factual position was not informed to the High Court. It is stated that the case is pending for last thirty years for eviction. It is further stated that the defendant had moved an application for placing on record 200 documents which was allowed by the learned trial court vide order dated 29/11/2017 and in rebuttal thereto ten documents were filed by the plaintiff-respondent which was allowed and taken on record by the learned trial court vide order dated 19/01/2018. Both the orders had not been challenged before this Court and detailed cross-examination has been done on the same documents at the stage of rebuttal. Learned counsel further submits that in the context of the said documents, the direction for allowing to lead rebuttal evidence by the learned trial court cannot be said in any manner to be unjustified or illegal. He has relied on the judgment passed by coordinate Bench of this Court in Gad Singh and ors. Vs. Phool Chand and anr. : 1997(2) WLN 209. 5. Heard learned counsel for the defendant-petitioner and the plaintiff-respondent no. 2 appearing in person. 6. Order 18 CPC lays down a procedure for hearing of the suit and examination of the witnesses. He has relied on the judgment passed by coordinate Bench of this Court in Gad Singh and ors. Vs. Phool Chand and anr. : 1997(2) WLN 209. 5. Heard learned counsel for the defendant-petitioner and the plaintiff-respondent no. 2 appearing in person. 6. Order 18 CPC lays down a procedure for hearing of the suit and examination of the witnesses. In terms of Order 18 Rule 2 CPC, the statement and production of evidence is recorded which reads as under:- "Order 18 Rule 2:-Statement and production of evidence.-(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3B) A copy of such written arguments shall be simultaneously furnished to the opposite party. (3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit." 7. In Rajasthan amendment, sub-rule (4) has been added to Rule 2 to Order 18 which reads as under:- "(4) Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, provided that the Court may on an application made in this behalf for the reason to be record, permit him to appear as his own witness at a later stage." 8. Order 18 Rule 3 CPC provides as under:- "3. Order 18 Rule 3 CPC provides as under:- "3. Evidence where several issues.- Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party, and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be emitted to reply generally on the whole case." 9. Thus, prior to amendment, sub-rule 4 to Rule 2 of Order 18 provided that the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage which has been omitted w.e.f. 1st July, 2002. However, in Rajasthan, the provision, as quoted above, exists. 10. In Gad Singh and ors. Vs. Phool Chand and anr. (supra), it has been held in Para 6 & 7 as under:- "6. After the amendment made in the Code of Civil Procedure, in the year 1976 Sub-Rule (4) in Rule 2 of Order 18 was incorporated which provides thus- "(4) Notwithstanding anything contained in this rule, the court may for reasons to be recorded direct or permit any party to examine any witness at any stage" In Rule 2 of Order is before the additional of sub-rule (4) by the amendment Act of 1976, the party having right to begin has to produce his evidence first and thereafter the opposite party was required to produce his evidence. Expression "at any stage" means any stage previous to delivery of judgment and therefore after recording its reason the court is legally competent and within its jurisdiction to allow any witness to be examined till passing of the judgment in the matter. 7. I am of the view that the plaintiff even without reserving his right to lead evidence in rebuttal, can apply to examine witnesses after the defendant has closed his evidence in view of Order 18 sub-rule (4). Therefore, I subscribe the view expressed by the Punjab and Haryana High Court. 7. I am of the view that the plaintiff even without reserving his right to lead evidence in rebuttal, can apply to examine witnesses after the defendant has closed his evidence in view of Order 18 sub-rule (4). Therefore, I subscribe the view expressed by the Punjab and Haryana High Court. As the learned court below has passed the reasoned order in the interest of justice, I see no error of jurisdiction in it and if the order is allowed to stand it would not occasion failure of justice." 11. In L.M.P. Precession Engineering Co. (P) Ltd. Vs. Ram Narayan: AIR 2004 Rajasthan 37, the High Court held as under:- "8. The proving of an issue by the defendant depends upon the specific plea taken in defence by the defendant and that burden can be discharged by the defendant by proving his case by his evidence and then the plaintiff can rebut those issues of the defendant by leading evidence. Sometime, it happens that one issue is framed placing burden upon the plaintiff and another issue may be an issue of rebuttal of the issue framed by plaintiff, then in that case, the plaintiff if leads evidence to prove his case, it is not necessary to say that he led evidence to meet with the defence of the defendant because of the reason that the plaintiff has right to prove his case and for that purpose he may not take risk of not proving his case on his assumption that the facts pleaded may be treated as admitted by the defendant by the Court, which may be disputed or may be interpreted subsequently in otherwise way on the basis of the pleas of the defendant. Therefore, what evidence the plaintiff has led on the issues and whether the plaintiff touched the issue of the defendant depends upon the facts of the case and no formula can be provided for deciding the matter. 9. Here in this case, after going through the evidence and in view of the very broad issue framed by the trial court, if the plaintiff led evidence which after going through the evidence appears to be touching to his own case only, therefore, the trial Court was not wrong in holding that the plaintiff has right to lead evidence in rebuttal." 12. In Jhunthi Devi Vs. Rasool Mithammed and ors. In Jhunthi Devi Vs. Rasool Mithammed and ors. (supra), the High Court has held as under:- 7. In my considered view, the judgment of this court in the case of Kalyan Dass is absolutely clear in holding that a further opportunity of leading evidence in rebuttal could not be allowed to a party on the vague ground of injustice when such party first leading evidence has failed to reserve its right of leading rebuttal evidence either by way of application in writing or by way of making specific oral request recorded by the court before the commencement of evidence. The subsequent judgment of this court in the case of Gad Singh(supra) appears to have merely side tracked a well considered judgment of this court in Kalyan Dass(supra) without negating the principle expounded therein. In my considered opinion, even invoking the principle of implied option as enunciated by the Hon'ble Punjab & Haryana High Court in Prem Singh Pratap Singh(supra) would be of no avail in the present case inasmuch as the drawing of an implied option would be defendant upon the facts of a given case. From the facts of the present case, it is evident that no such argument appears to have been raised before the trial court nor in the fact was it so argued before this court or any such ground taken in the petition laid before this court. Consequently, the principle of implied option enunciated in the judgment of the Punjab & Haryana High Court in the case of Prem Singh Pratap Singh(supra) as followed in Gad Singh(supra) is of no avail to the petitioner. 8. Aside of the aforesaid, the learned Single Judge in the case of Gad Singh (Supra) had revoked Order 18 Rule 2(4) CPC, 1976, which has since then been deleted by way of an Amendment under Section 27 of the Act 46 of 1999 effective 1st July, 2002 and thus was not on the statue at the time relevant to the proceedings before the executing court." 13. In view of the aforesaid judgments, this Court is of the view that taking into consideration the amendment made in Rajasthan relating to the provisions as quoted above, which have not been noticed by the Court in Jhunthi Devi Vs. Rasool Mithammed and ors. In view of the aforesaid judgments, this Court is of the view that taking into consideration the amendment made in Rajasthan relating to the provisions as quoted above, which have not been noticed by the Court in Jhunthi Devi Vs. Rasool Mithammed and ors. (supra), the provisions do not deprive the Court from directing the plaintiff to lead rebuttal evidence in a given case considering the facts and circumstances. Thus, where application for taking documents on record in terms of Order 7 Rule 14(3) CPC or in terms of Order 8 Rule 1A(3) CPC to the plaintiff or defendant subsequent to the evidence already recorded of the plaintiff, the opportunity of seeking option for rebuttal would be available and the plaintiff would have to be allowed to lead evidence in rebuttal in relation to the documents filed by the defendant subsequently and produced in evidence and at the same time, the defendant would be also entitled to cross-examine him in relation to the documents filed subsequently. Such a course is inherent in civil procedure and the very purpose of Order 18 relating to leading evidence would stand frustrated if such a course is not allowed to be adopted by the learned trial court. 14. It is also to be noted that the plaintiff-respondent has been allowed to record evidence in relation to the documents which have been allowed to be taken on record subsequent to his earlier evidence which had been closed. On the documents, which were allowed to be taken on record by the defendant-petitioner, evidence has been led by the defendant-petitioner. Thus, there was no occasion for the plaintiff-respondent to exercise option to reserve his right in rebuttal evidence. In the circumstances, directing the plaintiff-respondent to lead evidence in relation to the new documents filed and in rebuttal to the documents produced in evidence by the defendant-petitioner subsequent to closing of his earlier evidence, cannot be said in any manner to be illegal or unjustified. This Court is also of the further considered view that even if the Court has granted permission for examination of a party at a later stage, in given case the permission is nevertheless valid provided the permission is found to be on valid grounds and cannot be said to be an illegality and is merely a procedural irregularity. 15. This Court is also of the further considered view that even if the Court has granted permission for examination of a party at a later stage, in given case the permission is nevertheless valid provided the permission is found to be on valid grounds and cannot be said to be an illegality and is merely a procedural irregularity. 15. In the present case, this Court also finds that the present writ petition was filed concealing the facts regarding cross-examination having been already conducted in rebuttal by the defendant-petitioner and it is clearly a case where the defendant-petitioner has been successful in delaying disposal of the pending suit for eviction as this Court had stayed the proceedings. 16. Having noticed as above and in view of the findings arrived at and the conclusions drawn, the present writ petition is found to be misconceived and the same is accordingly dismissed. The stay application also stands dismissed with directions to the learned trial court to decide the pending suit within a period of two months hereinafter.