Petition under Article 227 challenging the rejection of a recall petition in an eviction suit. The petitioner claimed right to adduce evidence on title. The Court found the petitioner's defence had been struck off and remained so; proceedings were directed to conclude. Petition dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.1245 of 2017
======================================================
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr.Vinay Mistry, Advocate For the Respondent/s : Mr. Patanjali Rishi, Advocate Mr.Sanjay Kumar Sharma, Advocate
====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT
Date : 07-05-2024
Heard learned counsel for the petitioners as well as
learned counsel for the respondents.
Patna High Court C.Misc. No.1245 of 2017 dt.07-05-2024 2/7
petition dated 11.04.2017, filed by the original petitioner/defendant for recall of order dated 28.03.2017 with further prayer to allow the original petitioner/defendant to adduce evidence on the question of title, has been rejected by the learned trial court.
Patna High Court C.Misc. No.1245 of 2017 dt.07-05-2024 3/7
trial court, the defendant filed another writ application before this Court being C.W.J.C. No. 19938 of 2016 and the matter has been running at the stage of bringing orders of this Court in C.W.J.C. No. 19938 of 2016. However, the suit was mistakenly put up for hearing on 28.03.2017. On that date, the learned court passed order observing that the sufficient opportunity was given to the defendant but the defendant has not produced any order hence, the case was fixed for argument in view of the orders of this Court. Thereafter, the petitioner/defendant field a petition on 11.04.2017 for recall of the order dated 28.03.2017 which was rejected by order dated 25.04.2017. The learned trial court disposed of the petition with observation that in view of order dated 17.04.2012 defence has already been struck off and further held that there was no merit in the petition filed by the defendant. Learned counsel further submits that the defendant/ petitioner was under impression that the suit was at the stage of his evidence and he will be given opportunity to adduce since the order striking of his defence was reversed by this Court in C.W.J.C. No. 23099 of 2012 and the matter has been coming up for producing orders in C.W.J.C. No. 19938 of 2016 and under this impression, the defendant could not produce his witnesses. Learned counsel further submits that the impugned order is
Patna High Court C.Misc. No.1245 of 2017 dt.07-05-2024 4/7
against the ratio of decision of this Court rendered in the case of Mahabir Ram Vs. Sheo Shnakar Prasad & Ors. reported in 1968 PLJR 75, para 17 and the defendant should have been allowed to cross-examine the witnesses of the plaintiffs on the point of title if the defendant disputes the title of the plaintiff or adducing his own evidence on this issue. Same view was adopted by the Division Bench of this Court in the case of Dinesh Nandan Sahay Vs. Ram Kripal Singh & Ors. reported in 1966(1) PLJR 234 and Neelkamal’s case reported in 2015(4) PLJR 491 . Learned counsel further submits that as the defendant has been questioning the title of the plaintiffs, it was incumbent upon the trial court to allow the defendant to crossexamine the witnesses on the point of title and also allow to adduce his own evidence on the issue of title. Thus, learned counsel submits that the impugned order may be set aside.
Patna High Court C.Misc. No.1245 of 2017 dt.07-05-2024 5/7
C.W.J.C.No. 19938 of 2016 filed by the petitioner was dismissed as withdrawn vide order dated 04.10.2023. Learned counsel further submits that the argument of the defendant on this point that he has been awaiting for outcome of the case is fallacious since after the record was fixed for the evidence of the defendant and defendant was knowing all the time that he has to adduce evidence and despite directions of this Court in C.W.J.C. No. 23099 of 2012, the defendant failed to avail the order and learned trial court was duty bound to proceed with the trial and conclude the same within six months as per the direction of this Court in C.W.J.C. No. 23099 of 2012. Even otherwise dismissal of C.W.J.C. No. 19938 of 2017 has no bearing in the matter before the learned trial court. Learned counsel further submits that it is incorrect to say that the order was passed by this Court to set aside the order of striking off the defence of the petitioner rather petitioner was only permitted to cross-examine the witnesses of the plaintiffs. Learned counsel further submits that the authorities cited by the learned counsel for the petitioner has no application in the facts and circumstances of the present case as the relationship between the petitioner and respondents is of tenant and landlord and there is no dispute over title of the plaintiff. The claim of the defendant/petitioner is based on some
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agreement to sale and a suit for specific performance of contract was filed which does not give him any title over the suit premises. The argument made in this case is completely fallacious. Thus, learned counsel for the respondents submits that there is no merit in the present petition and the same may be dismissed.
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keeping in view the fact that the nature of the suit being an eviction suit as well as period of its pendency.
in the order dated 28.03.2017 and 25.04.2017 and the same are affirmed. Accordingly, the present petition stands dismissed.
(Arun Kumar Jha, J)
DKS/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 10.05.2024 |
| Transmission Date | NA |
Colour shows how this judgement treated each authority
Mahabir Ram Vs. Sheo Shnakar Prasad & Ors.Referred
1968 PLJR 75, para 17
Dinesh Nandan Sahay Vs. Ram Kripal Singh & Ors.Referred
1966(1) PLJR 234
Neelkamal’s caseReferred
2015(4) PLJR 491
1 provisions across 1 enactments
Bindu Devi
Vishal Kumar
Raushan Kumar
Kajal Kumar
Pramod Kumar Sharma
Rajni Kant Ranjan
Arun Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
