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2020 DIGILAW 32 (UTT)

Dasrath Kumar v. Jagjeet Singh

2020-01-08

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - Civil revision, under section 115 of CPC, is directed against the impugned order dated 30.07.2016, passed by Civil Judge (Sr. Div.) Roorkee, District Haridwar in O.S. No. 11 of 2005, Smt. Darshan Kaur vs Smt. Teji Bai (through legal representatives & others). 2. Facts leading to filing of the present revision are that Smt. Darshan Kaur (plaintiff), who was the owner of the suit property (hereinafter referred as property in dispute), initially executed a sale deed dated 07.02.2002 in favour of Smt. Teji Bai (since deceased) and, subsequently, instituted a suit for the cancellation of the sale deed as well as a decree of perpetual injunction. During the pendency of the suit, respondent nos. 1 to 4 herein, namely, Jagjeet Singh, Manjeet Singh, Virendra Singh and Dalveer Singh moved an impleadment application to implead them as defendant in the suit. Initially, the impleadment application, moved by respondent nos. 1 to 4 was rejected by the trial court against which they preferred WPMS No. 1287 of 2005, Jagjeet Singh & ors. vs. Additional District Judge, 1st FTC Roorkee and ors. During the course of the hearing of the aforesaid writ petition, the revisionists herein made a statement that they have no objection, in case respondent nos. 1 to 4 herein impleaded as partydefendants. This Court vide order dated 29.10.2005 disposed of the writ petition with the direction that respondent nos. 1 to 4 be impleaded as party-defendants. Pursuant to order dated 29.10.2005 passed by this court, respondent nos. 1 to 4 were arrayed as defendant nos. 4 to 7 in the suit. They filed written statement and also made counter claim and pleaded that they are also the co-owners of the property in question, therefore, their mother Smt. Darshan Kaur (plaintiff) had no right or authority to sell the property in favour of the mother of the revisionists herein. Smt. Darshan Kaur (plaintiff) also filed her affidavit of examination in chief. 3. Revisionists moved an application before the trial court stating therein that the counter claim filed by the defendants for cancellation of sale deed is collusive counter claim in connivance with their mother i.e. Darshan Kaur (plaintiff) therefore defendant nos. 4 to 9 (respondent nos. 1 to 4 and 8 & 9 herein) be directed to cross-examine the plaintiff first and thereafter revisionist be permitted to cross-examine the plaintiff. 4. 4 to 9 (respondent nos. 1 to 4 and 8 & 9 herein) be directed to cross-examine the plaintiff first and thereafter revisionist be permitted to cross-examine the plaintiff. 4. Plaintiff-Darshan Kaur filed her objection to the application stating therein that she is not in collusion with defendant nos. 4 to 9 rather they are contesting for their own rights as defendant nos. 4 to 9 are her sons and daughters, therefore, it cannot be presumed that there is collusion between plaintiff and defendant nos. 4 to 9. 5. The trial court having heard learned counsel for the parties by impugned order dated 30.07.2016 recorded its finding that defendant nos. 4 to 9 were impleaded as party-defendants in the suit on the consent extended by the revisionists herein, thus there could not be collusion between Darshan Kaur plaintiff and her sons (respondent nos. 1 to 4) and dismissed the application by impugned order. Aggrieved by order impugned, revisionist has filed this revision. 6. Heard Mr. Siddhartha Singh, learned counsel for the revisionist and Mr. Siddhartha Sah, learned counsel for respondent nos. 1 to 4. 7. During the pendency of the revision, plaintiff Darshan Kaur died and her legal heirs respondent nos. 5/1 to 5/6 were impleaded as party-respondents. Despite service affected upon them, none is present on their behalf. 8. Mr. Siddhartha Singh, learned counsel appearing for the revisionists made reference to the provision of Order VIII Rule 6A of the CPC and would contend that respondent nos. 1 to 4 herein, filed their counter claim in the original suit and their counter claim shall be considered as cross suit. For kind reference Order VIII Rule 6A of the CPC is extracted hereunder:- 6A-Counter claim by defendant:- (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 9. Sub-Rule (2) of Order VIII Rule 6A of the CPC stipulates that such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. 10. A careful perusal of the relief claimed in the suit as well as in the counter claim would reveal that the plaintiff- Darshan Kaur and respondent nos. 1 to 4 are claiming relief against revisionist herein thus position of plaintiff and respondent nos. 1 to 4 herein are plaintiffs and co-plaintiffs. There is no conflict of interest between plaintiff and respondent nos. 1 to 4 who have respectively filed suit and counter claim. In the counter claim, respondent nos. 1 to 4 have sought decree of partition against the plaintiff. There is no conflict of interest between plaintiff and respondent nos. 1 to 4 rather they are contesting in regard to the suit property against the revisionist herein. Plaintiff as well as respondent nos. 1 to 4 they become co-plaintiff, thus they have to adduce their evidence first, if they wish to cross-examine each other they may cross-examine each other before crossexamination by the revisionist herein. 11. Section 101 of the Evidence Act 1872 stipulate burden of proof. Since, in a suit and cross suit (counter claim) respondent nos. 1 to 4 are the co-plaintiffs, the burden lies upon all of them to prove their case in view of the provisions contained in Section 101 of the Evidence Act 1872. 12. Order 18 provides examination of witnesses by way of examination in chief, by way of affidavit. In view of provision contained in Order 18, plaintiffs have to adduce the evidence of examination in chief. 13. 12. Order 18 provides examination of witnesses by way of examination in chief, by way of affidavit. In view of provision contained in Order 18, plaintiffs have to adduce the evidence of examination in chief. 13. Section 137 of the Evidence Act defines 'Examination-in-Chief' as examination of a witness by the party who calls him for giving evidence. The examination of that witness by the adverse party is called 'crossexamination'. The examination of that witness subsequent to the cross-examination, by the Party who called him is called 're-examination. .A careful perusal of section 137 would reveal that the caption crossexamination stipulates for examination of witness by the adverse party shall be called his cross examination. 14. A careful perusal of the pleadings of this case, context of plaint and counter claim would reveal that in fact indirectly the plaintiff and respondent no. 1 to 4 are claiming their rights over the suit property against revisionists. The main relief of the plaintiff is for cancellation of the sale deed. Position of respondent nos. 1 to 4 become as co-plaintiffs as they are seeking decree of partition against the plaintiff and plaintiff has not refuted claim of respondent nos. 1 to 4. 15. The learned Trial court did not consider the provision contained in Section 137 of the Evidence Act 1872. However, this Court is of the view that plaintiffDarshan Kaur and her sons (respondent nos. 1 to 4 herein) are claiming the ownership over the property in dispute which was sold to the mother of the revisionists herein by Smt. Darshan Kaur-plaintiff. The finding recorded by the trial court that no collusion seems to be appeared between plaintiff and her sons are contrary to the facts available on record. In view of the provision contained in Section 137 of the Evidence Act 1872, this Court is of the view that the learned Trial court has committed illegality by rejecting the application of the revisionists' herein directing revisionists to cross-examine the plaintiff first and thereafter respondent nos. 1 to 4 shall cross-examine the plaintiff's witness. Since, Trial Court did not consider the fact that the case of the plaintiff and respondent nos. 1 to 4 is identical and, in fact, indirectly plaintiff and respondent nos. 1 to 4 are seeking relief against the revisionist herein, thus impugned order dated 30.07.2016 is liable to be set aside. 16. 1 to 4 shall cross-examine the plaintiff's witness. Since, Trial Court did not consider the fact that the case of the plaintiff and respondent nos. 1 to 4 is identical and, in fact, indirectly plaintiff and respondent nos. 1 to 4 are seeking relief against the revisionist herein, thus impugned order dated 30.07.2016 is liable to be set aside. 16. In view of the above, order impugned is hereby quashed. Application paper no. 286C is allowed. Respondent nos. 1 to 4 shall cross-examine the plaintiff's witness first, if they so chooses, thereafter revisionists shall cross-examine the plaintiff's witness. Consequently, civil revision is allowed. Having considered the fact that suit is of the year 2005 and more than 15 years have been passed, the trial court is directed to decide the suit expeditiously in accordance with law by giving ample opportunity of hearing to the parties. 17. In the facts and circumstances, parties shall bear their own cost.