Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 888 (HP)

Ashok Sud v. Roshan Lal Bhardwaj

2021-11-24

MOHAMMAD RAFIQ

body2021
ORDER : Mohammad Rafiq, J. 1. This petition has been filed by plaintiffs/petitioners assailing the order dated 2.8.2019, passed by the learned Civil Judge Court No. 3, Shimla in case No. 172-1 of 18/15, titled Ashok Sood and another versus Roshan lal Bhardwaj whereby their objection to the admissibility of the affidavit of the defendant Roshan lal Bhardwaj, has been rejected. 2. The facts of the case, as emerging from the pleadings, are that the defendant/respondent was a tenant of the plaintiffs/petitioners in the first floor of Irwin Lodge and its Annexe as well as one room in the ground floor thereof. The plaintiffs/petitioners succeeded in obtaining eviction order against him in Rent petition No. 47/2 of 2010/08 from the Rent Controller No. 1 on 30.6.2011. The defendant/tenant challenged the aforesaid order in Rent Appeal No. 40-S/14 of 2011 in which an interim order was passed on 3.7.2013 whereby operation of the eviction order was stayed subject to the respondent paying use and occupation charges @ Rs. 6000/- per mensem. Since the defendant/respondent did not comply with the aforementioned order, the plaintiffs/petitioners filed Execution Petition No. 17-10 of 2011 before the Rent Controller No. 1 Shimla, who issued the warrant of possession qua the tenanted premises in their favour and against the defendant/respondent. The Executing Court passed an order dated 27.7.2013 against the defendant/respondent dismissing his objection ordering issuance of warrant of possession. The defendant/respondent filed a Civil Revision Petition No. 4034 of 2013 against the aforesaid order dated 27.7.2013 before this Court, which was dismissed vide order dated 4.10.2013. The defendant/respondent unsuccessfully challenged the aforesaid order before the Supreme Court in SLP (C) No. 36864 of 2013 which, too, was dismissed in limine vide order dated 13.1.2014. While dismissing the SLP, the Supreme Court directed the defendant/tenant to deposit arrears in the account of the petitioners within two months from the date of passing the order. It was in this background that the plaintiffs filed the suit for recovery of the amount of arrears and interest due from the respondent. The issues in the suit were framed on 13.10.2015. Thereafter the plaintiffs/petitioners led evidence in that case. After recording the evidence of the plaintiffs, the matter was fixed for the evidence of the defendant/respondent on 1.6.2017 onwards. The defendant/respondent examined one Shri Uma Shankar who produced the record pertaining to the petitions filed before this Court. 3. The issues in the suit were framed on 13.10.2015. Thereafter the plaintiffs/petitioners led evidence in that case. After recording the evidence of the plaintiffs, the matter was fixed for the evidence of the defendant/respondent on 1.6.2017 onwards. The defendant/respondent examined one Shri Uma Shankar who produced the record pertaining to the petitions filed before this Court. 3. I have heard the learned counsel for the parties and have gone through the entire material on record. 4. Mr. Sanjay Kumar Verma, the learned counsel for the petitioners contended that despite several opportunities granted to the defendant, he failed to produce his evidence and therefore, counsel for the plaintiffs requested the trial Court to close the right of the defendant to adduce evidence. The trial Court however fixed 5.3.2018 as the date for the respondent to produce his remaining evidence. Thereafter the matter was transferred to the learned Civil Judge Court No. 3 on 3.5.2018, who granted further opportunities to the defendant on 17.5.2018, 4.7.2018 and 28.8.2018. It was thereafter the learned Court below on 28.5.2019 directed that non-official witnesses shall be produced by the defendant/respondent on his own responsibility on 2.8.2019. The defendant/respondent then produced one official witness Sh. Vinod Kumar who has produced the record of the execution proceedings. Apart from that, the defendant/respondent filed his own affidavit by way of examination-in-chief. The objection was taken by the plaintiffs/petitioners qua the admissibility of the aforesaid affidavit contending that it was nothing but a complete reproduction of the written statement filed by the defendant/respondent. In fact, it was cut, copy and paste of the written statement and therefore, violative of the provisions as contained in Order 19 of the Code of Civil Procedure, hereinafter referred to as "the CPC". It is contended that a perusal of the affidavit would show that it is repetitive and a reproduction of the entire written statement, is also argumentative and was liable to be struck off from the record of the case. The prayer of the plaintiffs/petitioners was disallowed by the learned Court below despite its conclusion that some of the paragraphs are similar to that of the written statement and the learned Court below has recorded the finding that there is nothing argumentative or cut copy paste in the same. 5. Learned counsel for the petitioners further argued that the impugned order passed by the learned Court below suffers from non-application of mind. 5. Learned counsel for the petitioners further argued that the impugned order passed by the learned Court below suffers from non-application of mind. The learned Court below has failed to appreciate ratio of the judgment of this Court in Garja Ram versus Kamla Devi and others reported in 2012 (1) Shim.LC 24 and has wrongly held that the same is not applicable to the facts of the present case. It is argued that the learned Court below has illegally granted further opportunities for cross-examination of the witnesses to the defendant/respondent on the premise that the plaintiffs/petitioners have themselves availed around 11 opportunities for their witnesses. The learned counsel for the petitioners has also relied upon the judgment delivered by the Bombay High Court in Harish Loyalka and another versus Dileep Nevatia and others in Suit No. 3598 of 1996. 6. Mr. Devender Kumar Sharma, the learned counsel for the defendant/respondent opposed the petition and submitted that the learned Court below has rightly rejected the objection of the plaintiffs/petitioners to the admissibility of the affidavit of the defendant and has rightly concluded that there was no breach of the provisions of Order 19 Rule 3 of the CPC. The judgment of this Court in Garja Ram's case (supra) and that of the Bombay High Court in Harish Loyalka's case supra, relied on, on behalf of the plaintiffs/petitioners are distinguishable and therefore, could not have been applied. 7. A perusal of the impugned order indicates that the learned Court below has threadbare examined the objection of the plaintiffs/petitioners as to the admissibility of the affidavit of the defendant. It was noted that the suit was filed by the plaintiffs for recovery of Rs. 2,00,925/- alongwith interest and use and occupation charges. The written statement filed by the defendant contains various facts in the pleadings. After going through the affidavit of the defendant Roshan Lal Bhardwaj, in the light of the provisions of Order 19 Rule 3 CPC, the learned Court below observed that it did not see any reason to reject the same on the grounds put forth by the plaintiffs. It was held that upon taking into consideration the nature of the suit, there was nothing argumentative or cut copy paste in the affidavit. It was held that upon taking into consideration the nature of the suit, there was nothing argumentative or cut copy paste in the affidavit. Even if some of the paragraphs are similar to what was stated in the written statement they are merely explanatory in nature and are well within the knowledge of the plaintiffs. 8. Judgment of the learned Single Judge of this Court in Garja Ram's case (supra), relied upon by the plaintiffs, arose out of a case where the Court, on a perusal of the affidavit concluded that not only the affidavit is highly repetitive but certain facts stated therein, on the face of it, are hearsay. Most part of the affidavit is argumentative and philosophical in nature. Apart from that, the Court observed that the civil suit was filed way-back in the year 2004 and such affidavit was likely to hamper the progress of the suit. However, such are not the facts of the present case. 9. In Harish Loyalka's case (supra), the Court held that the emphasis of Order 19 Rule 3 of the CPC is that no affidavit should contain material which is hearsay or argumentative. The affidavit must be confined to such facts which the deponent can prove. The affidavit in lieu of examination-in-chief is constrained by two factors: (a) it must be examination-in-chief; and (b) it must be an affidavit conforming to the requirement of the Indian Evidence Act and the provisions of Order 19 Rule 3 CPC. However, the statements in the nature of legal submissions and arguments in the pleadings should be avoided. 10. It the light of the above, it must be held that the affidavit filed in the examination-in-chief, as per the mandate of Orders 18 and 19 of the CPC, should not contain statements which are (i) argumentative or in the nature of submissions and pleadings etc; (ii) matters which are wholly irrelevant and also not in the personal knowledge of the deponent or witness; and (iii) matters which are demonstrably hearsay. If there be any such material, the Court must endeavour to bring that affidavit in conformity with the provisions of Orders 18 and 19 of CPC and of the Indian Evidence Act. 11. If there be any such material, the Court must endeavour to bring that affidavit in conformity with the provisions of Orders 18 and 19 of CPC and of the Indian Evidence Act. 11. Applying the aforementioned yard-sticks, it cannot be said that the affidavit filed by the defendant in the present case is based on hearsay or, in any manner argumentative, or contains such statements which are wholly irrelevant or which can be described outside the personal knowledge of the defendant. 12. In view of the aforesaid discussion/observations, I do not find any infirmity in the impugned order passed by the learned Court below. The petition is therefore dismissed. Pending miscellaneous applications, if any, shall also stand disposed of.