Harminder Pal and Another vs Pritam Dass and Others

J.V. Gupta, C.J.—The following question has been referred to this Bench :--

"Whether a defendant, who has admitted the claim of the plaintiff is entitled to lead evidence in support of the claim made by the plaintiff ?"

Pritam Dass, plaintiff filed a suit for declaration against his sons Harminder Pal and Harkrishan Pal and their vendees Bachan Singh and others. According to the plaintiff, he was the owner of the suit property whereas; his sons were only Benamidar, therefore, they were having no right to sell the same in favour of other defendants. On the service of the notice, the sons of the plaintiff admitted the claim whereas; the suit was contested by the vendees of the sons. The plaintiff led his evidence and ultimately the evidence was closed on October 10, 1987 whereas, the suit was filed in the year 1981. Then the contesting defendants, concluded their evidence on June 15, 1988 and the case was adjourned for evidence of the plaintiff in rebuttal. At this stage, the sons of the plaintiff, who admitted his claim moved an application to allow them to lead evidence, which application was contested on behalf of the defendant-vendees. The learned trial Court came to the conclusion that the evidence is to be produced by a party on the issue in controversy, the sons of the plaintiff are not at issue with the plaintiff and as such they have no equitable right to lead evidence and therefore debarred from leading evidence. Consequently, the said application was rejected. Dissatisfied with the same, the consenting defendants filed this petition in this Court.

The learned counsel for the petitioner cited Chhoilu Ram v. Chandi Ram and Ors. 1985 88 P.L.R. 203 in support of the proposition that even if the defendant had admitted the claim of the plaintiff, he was to be allowed to lead evidence supporting the cause of the plaintiff. According to the learned Single Judge some of the legal aspects were not considered in the said case and the question of law posed in this petition, is likely to arise in a number of cases, it is apt to be settled by a Larger Bench.

Learned counsel for the petitioner referred to Order 15. Rule 1 of the CPC and Rule 2 thereof and also referred to Order 18, Rule 2 of the CPC to contend that even if the defendant admits the claim of the plaintiff, he has a right to produce his evidence, if any, and may then address the Court generally on the whole case. In support of this contention he also referred to Haji Bibi v. H.H. Sir Sultan Mohamed Khan ILR 32 Bom. 599., Nanak Chand Vs. Durga Pershad Brinja and Others, , Giani Zail Singh v. Election Tribunal II. Chandigarh and Ors. (1964) 66 P.L. R. 297, Subhash Chander and Ors. v. Shanti Swaroop (1983) 85 P.L.R. 359.

According to the learned counsel for the petitioner, the defendant admitting and supporting the case of the plaintiff, has a right to lead evidence in view of the provisions of Order 18, Sub-rule (2) of Rule 2 of the Code of Civil Procedure. On the other hand, learned counsel for the respondents submitted that the consenting defendant has no such right to lead evidence in support of the plaintiff''s case. In any case, argued the learned counsel that the right, if any, is when the plaintiff leads his evidence and not at the stage when the plaintiff''s evidence is closed and the defendants have led evidence in rebuttal. At that stage, the consenting defendants cannot be allowed to lead evidence in support of the plaintiff''s case. The Judgments referred to above, were sought to be distinguished by him.

After hearing the learned counsel for the parties and going through the case law cited at the bar we are of the considered view that the party who admits or supports the claim of the plaintiff could be allowed to lead evidence in support of the plaintiff''s claim before the contesting defendants is called upon to lead evidence. Once the contesting defendant is called upon to lead evidence and closes the same, then the consenting defendant cannot be allowed to lead evidence in support of plaintiff''s claim. In other words, once a party admits the plaintiff''s claim, it steps into his shoes and will lead evidence, if any, alongwith the plaintiff. Once the contesting defendants are allowed to lead evidence then at that stage the consenting defendant could not be allowed to fill up the lacuna of the plaintiff''s case. In Chhallu Ram''s case (supra) the consenting defendants were allowed to lead evidence after the plaintiff had closed his evidence. At that stage, an objection was taken on behalf of the contesting defendants that the said defendant was not entitled to lead evidence. It was in the situation that it was held by this Court that this said defendant should be given an opportunity to lead his evidence before the contesting defendants could lead their evidence. In a Subhash Chander''s case (supra) the consenting defendant wanted to be transposed as plaintiff and then lead evidence in support of the plaintiff''s claim which application was dismissed by the trial Court. It was, therefore, held that the Court had every right to permit such defendant though by order to examine any witness at any stage. In Nanak Chand''s case (supra) it was observed that "I have no doubt that when an issue of fact arises between the plaintiff and one of the defendants the other defendants who support the plaintiff''s case cannot be prevented from examining evidence on that issue." It is, therefore, evident that in all these cases the consenting defendant was allowed to lead evidence in support of the plaintiff''s case at the stage when the plaintiff was leading his evidence. In none of the cases referred to above, it has been held that the consenting defendant is entitled to lead evidence in support of the plaintiff''s claim even after the contesting defendants have closed their evidence.

As regards the facts of the present case reproduced above, it is evident that the sons of the plaintiff who were supporting their father wanted to lead evidence when the contesting defendants i.e. vendees had closed their case. At that stage they could not be allowed to lead evidence in support of the plaintiff''s case and the trial Court rightly dismissed their application.

It is most unfortunate that this case is pending since 1981 and the plaintiff and his sons are delaying the proceedings unnecessarily. Consequently, this petition fails and dismissed with costs which are quantified as Rs. 500/-. The parties have been directed to appear in the trial Court on 20-9-1990.