Allowed

Pati Ram and Ors. v. Civil Judge J D and Ors.

Rajasthan HC18 May 2023CW/2365/2008

Case brief

AI extract

What is this about?

The High Court allowed the petition, quashing the trial court's dismissal of an application to exclude evidence. The court held the affidavit was inadmissible as it was filed after evidence closure and functioned as initial testimony rather than a rebuttal, violating Order 18 Rule 3 CPC.

What did the court decide?

The impugned order dated 21.02.2008 is quaished and set aside; the writ petition is allowed; the trial court is directed to adjudicate expeditiously.

Pati Ram and Ors. Vs Civil Judge J D and Ors. — Property and Title | Rajasthan HC (2023)

¶1

[2023/RJJP/011317]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Writ Petition No. 2365/2008

¶4

Pati Ram S/o Late Shri Ramsujan, Village Bichola, Presently Resident Of Jiraha Mohalla, Rajakhera, District, Dholpur Rajasthan

¶5

Rakesh S/o Late Shri Ramsujan, Village Bichola, Presently Resident Of Jiraha Mohalla, Rajakhera, District, Dholpur Rajasthan

¶6

Smt. Rambati W/o Late Shri Ramsujan, Village Bichola, Presently Resident Of Jiraha Mohalla, Rajakhera, District, Dholpur Rajasthan

¶7

Vinod Kumar S/o Late Shri Ramsujan, Village Bichola, Presently Resident Of Jiraha Mohalla, Rajakhera, District, Dholpur Rajasthan

¶8

----Petitioners

¶9

Versus

¶10

Civil Judge Junior Division, Rajakhera, District Dholpur Rajasthan

¶11

Rakesh Kumar S/o Om Prrakash,Ward No. 12, Rajakhera, District Dholpur Rajasthan

¶12

----Respondents

¶13

For Petitioner(s) : Mr. D.K. Garg, Adv. For Respondent(s) :

¶14

HON'BLE MR. JUSTICE SAMEER JAIN

¶15

Order

¶16

18/05/2023

¶17

By way of the present writ petition, a challenge is made to the impugned order dated 21.02.2008, passed by the Civil Judge (Junior Division), Rajakhera, District Dholpur whereby the application filed by the petitioners under Order 18 Rule 3 of the Code of Civil Procedure in Suit No. 179/1996 titled as Rakesh

¶18

Kumar vs. Lacchho & Others , was dismissed.

[2023/RJJP/011317]

[CW-2365/2008]

(2 of 6)

In the instant matter, an ex-parte stay order was granted on 13.03.2008. Thereafter, service in the matter was complete on 18.01.2014. Subsequently, several categoric orders were passed by this Court warranting the presence of the respondent to contest the matter. However, despite affording numerous opportunities, none has marked their appearance on behalf of the respondents. Therefore, considering the long drawn pendency of the matter, this Court is constrained to take up the same for final disposal.

¶23

Learned counsel for the petitioner has submitted that on account of non-consideration of material aspects, the finding arrived at by the learned trial court while passing the impugned order, is perverse and contrary to the settled position of law. In this background, learned counsel for the petitioner-defendant submitted that the respondent-plaintiff had filed a suit for declaration and possession before the court below on 17.09.1986. Thereafter, in the year 1989, the learned trial court framed issues therein. Out of the issues so framed, issue nos. 1, 2 and 3 were required to be proved by the plaintiff-respondent, whereas, issue nos. 4 and 5 were to be proved by the petitioner-defendant. It was submitted that despite being afforded numerous opportunities to adduce his evidence, the respondent-plaintiff failed to do so and as a result, he only examined himself as PW-1. Therefore, under the aforementioned circumstances, on 26.02.2004, the evidence of the respondent-plaintiff was closed. However, despite the said closing of the evidence, on the next date, the respondent-plaintiff moved an application for the grant of an additional opportunity to adduce evidence. The said application was dismissed by the

[2023/RJJP/011317]

[CW-2365/2008]

(3 of 6)

learned trial court vide order dated 11.10.2007. It was submitted that while doing so, the learned trial court had passed a speaking and well-reasoned order.

¶28

It was submitted that subsequently, the petitionerdefendants were granted an opportunity to adduce their evidence and consequentially, they presented their evidence on three different occasions. At this stage, learned counsel for the petitioner-defendants submitted that without actually adducing evidence at the appropriate stage when several opportunities were provided to the respondent-plaintiff, the latter as a part of his response to the petitioner-defendants evidence, submitted an affidavit of the witness to be produced by him. Hence, it was only upon receiving a copy of the said affidavit, that the petitionerdefendants moved an application under Order 18 Rule 3 of CPC, challenging/objecting to the said affidavit whilst praying for the same not to be taken on record, as being impermissible in law to do so. However, much to the dismay of the petitioner-defendants, the learned trial court, in complete contravention of the mandate of Order 18 Rule 3 of CPC, dismissed the application filed by the petitioner-defendants. Therefore, being aggrieved of the impugned order dated 21.02.2008, the petitioner-defendants have approached this Court by way of the present writ petition.

¶29

Have heard the arguments advanced by the learned counsel for the petitioner-defendants and perused the record of the case. 6. In the facts and circumstances of the present case, it is observed that vide order dated 26.02.2004, on account of the fact that no witness qua the respondent-plaintiff was present before the court despite having been afforded several opportunities, the

[2023/RJJP/011317]

[CW-2365/2008]

(4 of 6)

evidence of the respondent-plaintiff was closed. Thereafter, the respondent-plaintiff moved an application before the learned trial court for the grant of an additional opportunity to lead evidence. However, the said application was dismissed by the learned trial court vide order dated 11.10.2007.

¶34

Upon a perusal of the order dated 11.10.2007, it is observed that while dismissing the respondent-plaintiff’s application for the grant of an additional opportunity to lead evidence, the learned court passed a well-reasoned and speaking order whereby the reasons for dismissal were categorically noted. It was specifically stated that the respondent-plaintiff had been afforded several opportunities to lead his evidence. However, despite the same, no evidence was led by him. Thereafter, even on 26.02.2004, when the matter was listed for the respondent-plaintiff’s evidence, no evidence was led by him and as a result, in light of the continued absence and inaction on part of the respondent-plaintiff, his evidence was closed in the matter. Moreover, while passing the order dated 11.10.2007, it was also considered by the learned trial court that if the court were to allow the respondent-plaintiff’s application for grant of an additional opportunity to lead evidence, then the efficacious and timely disposal of the proceedings would be unnecessarily hindered and interrupted.

¶35

Furthermore, during the course of arguments, a query was put forth by this Court, whereby it was enquired from the petitioner-defendants as to whether the order dated 11.10.2007, whereby the application filed by the respondent-plaintiff for the grant of an additional opportunity to adduce evidence was dismissed, had been challenged by the respondent-plaintiff before

[2023/RJJP/011317]

[CW-2365/2008]

(5 of 6)

the appellate authority or not. In response to the said query, learned counsel for the petitioner-defendants answered in the negative. Thus, in light of the same, it appears that the order dated 11.10.2007 had attained finality. Therefore, the learned trial court erred in allowing the respondent-plaintiff to adduce additional evidence by way of an affidavit, after the evidence of the petitioner-defendants was closed. In this regard, it is pertinent to note that upon a perusal of the record of the case, it is also observed that the affidavit filed by the respondent-plaintiff of Sh. Kirodi Mal was not in the form of a rebuttal, as is provided for under Order 18 Rule 3. Rather, the aforementioned affidavit was filed in the form of Order 18 Rule 2, in order to fill out the lacuna caused by the previous non-production of evidence by the respondent-plaintiff, despite having been granted several opportunities to do so.

¶40

Therefore, upon a cumulative consideration of the fact that the lis in question before the learned trial court pertains to the year 1986; that several opportunities were afforded by the learned trial court to the respondent-plaintiff for adducing his evidence, despite which, the latter failed to lead any evidence in a timely manner; that based on the conduct of the respondent-plaintiff in not adducing any evidence despite having been granted several opportunities, the stage of evidence for the respondent-plaintiff was closed on 26.02.2004 by way of a speaking order incorporating the reasons for closure as well; that by way of a well-reasoned and speaking order, the learned trial court on 11.10.2007, rejected the respondent-plaintiff’s application for grant of an additional opportunity to lead evidence; that the order

[2023/RJJP/011317]

[CW-2365/2008]

(6 of 6)

dated 11.10.2007 was not challenged by the respondent-plaintiff, thus, had attained finality; that while passing the impugned order dated 21.02.2008, the learned trial did not take into consideration the material stipulations such as the passing of the orders dated 26.02.2004 and 11.10.2007 and the reasons for rejection recorded therein and also considering the fact that the affidavit submitted by the respondent-plaintiff, after the conclusion of the evidence of the petitioner-defendants, was not in the form of a rebuttal as stipulated under Order 18 Rule 3, rather, in order to fill out the lacunas caused by the non-production of evidence at the first stage, the said affidavit was filed in the form of Order 18 Rule 2, which is impermissible at the said stage of the proceedings, this Court is inclined to allow the present writ petition.

¶45

Considering the fact that the lis in question pertains to the year 1986 and an ex-parte stay order has been operational since 13.03.2008, this Court deems it fit to direct the concerned trial court to carry out the adjudication of the present matter at the earliest and in an expeditious manner, after duly following the principles of natural justice and forthwith complying with the due procedure established by law.

¶46

Accordingly, in light of the observations made herein-above, the writ petition is allowed. As a result, the impugned order dated 21.02.2008 is quashed and set aside.

¶47

All pending applications stand disposed of.

¶48

(SAMEER JAIN),J

¶49

ANIL SHARMA /47

Pati Ram and Ors. v. Civil Judge J D and Ors.

Case brief

What is this about?

What did the court decide?

Pati Ram and Ors. v. Civil Judge J D and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bharpai Devi Vs Badami Devi and Ors.

Bharpai Devi Vs Badami Devi and Ors.

Chhoti Bai and Anr. Vs Govt of Raj and Ors.

Navin Chand Vs State of Raj and Ors.

Vijay Kumar Chhabra Vs the Estate Officer Wakf Board

Tej Singh Son of Late Shri Kanhaiya Lal Vs Addl. District Judge No. 3