Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2378 (RAJ)

Dwarka Prasad S/o Shri Madan Lal Gupta v. Dharmesh S/o Shri Punni Lal Jain

2022-09-07

FARJAND ALI

body2022
JUDGMENT : 1. The instant Civil Misc. Appeal has been filed by the defendant-appellant Dwarka Prasad assailing the judgment and decree dated 26.03.2019 passed by the learned Additional Sessions Judge No.2 Aburoad, District Sirohi in Civil Appeal No.24/2018 (11/2016) whereby the learned Appellate Court set aside the judgment and decree dated 20.09.2016 passed by the learned Civil Judge, Aburoad in Civil Original Suit No.41/2012 and remanded the matter to the learned trial Judge with a direction to proceed with the same in accordance with law. 2. The skeletal material facts necessary for the purpose of deciding the instant appeal are that the plaintiff-respondent had filed a suit against the defendant-appellant for eviction and recovery of rent. The defendant-appellant filed a written statement denying the plaintiff as owner of the property-in question besides other specific contentions. On the basis of pleadings of the parties, the learned trial court framed the issues. The learned trial Judge on its own framed an issue as to whether there was a relationship of owner and tenant in between the parties. The plaintiff-respondent filed an application under Order 7 Rule 14 (3) of the CPC and prayed for taking on record photostat copies of the Will, counter copy of rent receipt, rent note of Gavari Devi, adoption deed (Godnama) and copy of ‘Patta’ of the disputed property. The learned trial court allowed the application of the plaintiff-respondent filed under Order 7 Rule 14 (3) CPC vide order dated 16.11.2013. On 10.07.2014, the plaintiff-respondent submitted an affidavit in the form of examination-in chief, upon which, the defendant-appellant moved an application under Order 6 Rule 17 of the CPC for making amendment in the written statement, which was accepted by the learned trial Judge vide order dated 20.11.2014. The plaintiff respondent filed an application under Order 8 Rule 9 of the CPC along with the format of counter reply, which remained pending before the learned trial court. At this juncture, an application under Order 11 Rule 12 of the CPC was submitted at the behest of the defendant-appellant with a prayer to direct the plaintiff respondent to produce the original Will, ‘Patta’, rent deed and original receipt of the rent in the court. Vide order dated 21.07.2015, the learned trial court allowed the said application and directed the plaintiff-respondent to produce the original Will, ‘Patta’, rent deed and original receipt of the rent on record. Vide order dated 21.07.2015, the learned trial court allowed the said application and directed the plaintiff-respondent to produce the original Will, ‘Patta’, rent deed and original receipt of the rent on record. It is worthwhile to mention here that after passing of the order dated 21.07.2015, the matter got adjourned at the request of defendant-appellant on the ground of filing reply to the plaintiff respondent's application under Order 8 Rule 9 of the CPC as well as at the request of the plaintiff-respondent for producing the original documents on record. On 04.11.2015, the plaintiff respondent preferred another application averring therein that prior to filing of the suit, the original Will and sale deed were mortgaged with the Branch of SBBJ, Aburoad as the same were taken in hypothecation against the loan account, therefore, the documents may be summoned from the Bank. The matter got adjourned on six different occasions for want of reply to the application filed by the plaintiff-respondent. However, on 24.05.2016, the defendant-appellant moved another application under Order 11 Rule 21 r/w Section 151 of the CPC with a request to reject the suit filed by the plaintiff-respondent on account of his failure to produce the documents on record. The learned trial Judge allowed the application of the defendant-appellant filed under Order 11 Rule 21 r/w Section 151 of the CPC and dismissed the suit filed by the plaintiff-respondent vide judgment and decree dated 20.09.2016. 3. Aggrieved by the judgment and decree dated 20.09.20216, the plaintiff-respondent preferred an appeal before the learned Additional Sessions Judge No.2, Aburoad for setting aside the same. After hearing the counsel for the parties, learned Appellate Court vide its judgment and decree dated 26.03.2019 allowed the appeal while setting aside the judgment and decree dated 20.09.2016 and the matter was remanded back to the learned trial court for re-registration to its original number and then to proceed further in accordance with the procedure established by law. The said judgment and decree dated 26.03.2019 has been challenged by the defendant-appellant before this Court by way of filing the instant appeal. 4. Learned counsel Shri Shambhoo Singh representing the defendant-appellant has submitted that judgment and decree passed by the learned Appellate Court is against the facts on record and contrary to the provisions of law; the judgment and decree suffers from material irregularity and perversity. 4. Learned counsel Shri Shambhoo Singh representing the defendant-appellant has submitted that judgment and decree passed by the learned Appellate Court is against the facts on record and contrary to the provisions of law; the judgment and decree suffers from material irregularity and perversity. It has been asserted that the learned trial court had passed the judgment and decree while considering the provisions of law as well as the facts of the case and, therefore, the same does not deserve to be reversed. It has been submitted that the learned trial court vide order dated 21.07.2015 directed the plaintiff respondent to place the original documents on record but the said order was never challenged and thus, attained finality. In that situation, the provision of Order 11 Rule 21 of the CPC is attracted automatically and thus, the learned trial court has not committed any error of law in allowing the application and in dismissing the suit. He has further submitted that even if the submissions as made by the plaintiff-respondent before the learned trial court are taken to be true, then yet only two documents are lying with the bank, while the other three documents are in the custody/possession of the plaintiff respondent but despite several opportunities, the same were not produced by him before the court below. He has further submitted that it is a case of willful disobedience and default on the part of plaintiff-respondent owing to non-compliance of the order dated 21.07.2015, therefore, no interference is called for by this Court in the judgment and decree passed by the learned trial court as the learned Appellate Court has failed to appreciate the correct, legal and factual aspects of the order in passing the impugned judgment. 5. Per contra, learned counsel Shri Shreyansh Mardia, representing the plaintiff-respondent, has vehemently opposed the submissions advanced by the defendant-appellant’s counsel. It has been submitted that the learned appellate court has rightly allowed the appeal and remanded the matter back to the trial court. The judgment passed by the learned Appellate Court is a well reasoned order and therefore, no interference is called for by this Court. He has further submitted that after passing of the order dated 21.07.2015, the plaintiff-respondent moved an application for summoning the documents from the concerned bank as he was not having possession of the same. The judgment passed by the learned Appellate Court is a well reasoned order and therefore, no interference is called for by this Court. He has further submitted that after passing of the order dated 21.07.2015, the plaintiff-respondent moved an application for summoning the documents from the concerned bank as he was not having possession of the same. He drew attention of the Court towards the fact that after filing of the application dated 04.11.2015, at the instance of the plaintiff respondent for summoning the documents from the bank, the defendant-appellant sought several adjournments for filing reply to the application and lastly, without filing the reply to the said application, he moved another application dated 24.05.2016 for dismissal of the suit as the documents were not produced on record. That apart, the defendant-appellant also sought adjournment for fling reply to the application filed by the plaintiff respondent under Order 8 Rule 9 of the CPC. He has submitted that in these circumstances when the application of the plaintiff-respondent was pending before the trial court for summoning the documents from the concerned bank, it was incumbent upon the learned trial judge to decide the said application before passing the impugned judgment dated 21.07.2015. The application filed by the defendant-appellant under Order 11 Rule 21 of the CPC refers to the same documents for which an application for summoning the documents from the concerned bank was pending adjudication before the learned trial Judge, therefore, in that situation the learned trial Judge should have decided the application filed by the plaintiff-respondent for summoning the documents at first and then to pass any other order on application under Order 11 Rule 21 of the CPC. 6. Heard learned counsel for the parties and perused the material available on record. 7. I have considered the rival submissions made at Bar and after anxious consideration of the matter, this court is of the view that till the application was pending before the trial court for summoning the documents from the concerned branch of SBBJ, passing any order on the application filed by the defendant appellant under Order 11 Rule 21 r/w Section 151 of the CPC was not justifiable. The plaintiff-respondent filed a suit for evicting the defendant-appellant from the suit property and for recovery of rent in which issues had already been framed by the learned court. The plaintiff-respondent filed a suit for evicting the defendant-appellant from the suit property and for recovery of rent in which issues had already been framed by the learned court. An application dated 18.05.2013 filed under Order 7 Rule 14 (3) of the CPC had already been allowed by the learned trial court while permitting the plaintiff-respondent to produce the photostat copies of the original Will, ‘Patta’, rent deed and original receipt of the rent etc. The photostat copies of the required documents were already on record. After passing the order on application filed under Order 11 Rule 12 of the CPC for producing the documents on record, the plaintiff-respondent had already clarified before the trial court that he was having possession of some of the documents, while other two original documents were lying with the bank i.e. SBBJ, Aburoad. 8. The intent of the plaintiff-respondent is very much obvious from the application dated 04.11.2015 that he wanted to make compliance of the order passed by the learned trial court and that’s why he moved an application for summoning the documents from the concerned bank. The learned trial court ought to have decided the said application dated 04.11.2015 before passing any order on an application under Order 11 Rule 21 r/w Section 151 of the CPC. The ultimate object of the court is to impart justice instead of deciding the cases on technicalities as one cannot be left remediless. This is a suit for eviction and recovery of rent which is pending before the trial court since the year 2012. At this stage; in the given circumstances, this Court is not inclined to adjudicate upon the question that whether the order dated 21.07.2015 would fall and coverable under Order 11 Rule 12 or under Order 11 Rule 14 of the CPC. 9. Be that as it may, the plaintiff-respondent was duty bound to make compliance of the order dated 21.07.2015 and in fact he, by preferring applications, sought time for filing the original documents which were not in his possession. He had moved an application for summoning the same. It is not in dispute that the order dated 21.07.2015 was never challenged and the same has attained finality. Thus, it is imperative upon the plaintiff respondent to produce the documents on record, copies of which have already been submitted by him along with the suit. He had moved an application for summoning the same. It is not in dispute that the order dated 21.07.2015 was never challenged and the same has attained finality. Thus, it is imperative upon the plaintiff respondent to produce the documents on record, copies of which have already been submitted by him along with the suit. The case was at the stage of leading evidence. 10. In this background, this Court is of the firm opinion that the learned Additional Sessions Judge No.2, Aburoad has not committed any error, either factual or legal, while allowing the appeal filed by the plaintiff-respondent vide impugned judgment and decree dated 26.03.2019 passed in Civil Appeal No.24/2018 (11/2016) by which the judgment and decree dated 20.09.2016 passed by the learned Civil Judge, Aburoad in Civil Original Case No.41/2012 has been quashed and set aside. The submissions made by the learned counsel for the appellants are devoid of any merit and thus, are hereby discarded. The appeal is dismissed with no order as to costs. 11. Before parting, this Court deemed it just and appropriate to direct the plaintiff-respondent to produce the original documents namely the original Will, ‘Patta’, rent deed and original receipt of the rent on record, before the trial court within a period of two months of re-registration of the suit. 12. Records of the learned appellate court as well as learned trial court be sent back. Since both the parties are represented by their respective counsel, thus, they are directed to instruct their parties to appear before the trial court on 12.10.2022. The learned trial court is directed to hear and decide the suit expeditiously.