Jagdish vs Daulat Ram and Others

N.K. Kapoor, J.—This revision petition is against the order dated 10.9.1994 of Sub Judge 1st Class, Rewari, declining the petitioner''s prayer for further opportunity to adduce evidence.

It is the case of the petitioner that even when a defendant had filed admission written statement, the same does not debar him from leading evidence by any express or implied provision in the Code of Civil Procedure. Thus, it was incumbent upon the trial Court to grant the petitioner a reasonable opportunity to support his case even as per his admission written statement. Thus, the impugned order is liable to be set aside on this short ground alone.

Learned counsel for the respondents before controverting the legal submissions made by the learned counsel for the petitioner highlighted the facts leading to the filing of the present suit. According to the respondents, they filed an application against Jagdish Parsad - the present petitioner - u/s 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 on a number of grounds. The order of eviction was passed by the Rent Controller on 9.8.1989 which was affirmed by the appellate authority vide order dated 20.11.1991. The appellate authority while dismissing the appeal filed by Jagdish Parsad observed that, in fact, the appellant had attempted to set up a wholly false case and has fabricated evidence and that he has supported the case of Prem Kumar for some ulterior motive. According to the respondents, since the order of the appellate authority has become final between the petitioner and the respondents, the present suit filed by Prem Kumar, who is near relation of the petitioner, is nothing but an attempt to frustrate or in any manner delay the execution of a valid order dated 20.11.1991. The present case when examined in the light of this uncontroverted material referred to by the respondents in their written statement, no ground is made out for permitting the petitioner to adduce evidence especially when he has already admitted the case of the plaintiff in toto.

I have heard learned counsel for the parties as well as perused the impugned order. Admittedly, the petitioner (defendant No. 5) filed an admission written statement admitting the claim of the plaintiff in toto. Thus, there is no manner of doubt that the petitioner is not at issue with the plaintiff. There is no issue in respect of which the petitioner has to adduce evidence. It is also worth noticing that the learned counsel for the petitioner did not choose to rebut the assertion of the counsel for the respondents that an order of eviction was passed by the Rent Controller against the petitioner and affirmed too by the appellate authority. The trial Court while making mention of the admission written statement further highlighted that, in fact, the present suit is at the behest of defendant No.5. No doubt, there is no express or implied provision under Order 15 Rule 2 of the CPC debarring a defendant from leading evidence when he has admitted the claim of the plaintiff, yet in the context of the present case to allow such a person to lead evidence when the suit itself is purported to have been filed at his behest would indirectly amount to giving an opportunity to the plaintiff (through defendant) to fill up the lacuna in the case, such a course is not permissible in law.

The facts in the cited case reported as Chhailu Ram v. Chandi Ram and Ors. (1985)87 P.L.R. 203 are slightly different. In that case the defendant, in fact, had been permitted to produce evidence and even adjournment has been granted on payment of costs. It is on the subsequent date that an objection was taken that such a defendant cannot be permitted to lead evidence. The trial Court vide the impugned order held that the defendant is not entitled to lead evidence which order was challenged before this Court in revision. Reliance was placed upon the decision of this Court in case reported as Giani Zail Singh v. Election Tribunal II, Chandigarh AIR 1964 P&H 105 wherein A.N. Grover, J., as his Lordship then was, after considering the provisions of Order 18 Rule 2 of the CPC came to the conclusion that a defendant even when supports the case of the plaintiff is not debarred from leading evidence by any express or implied provision of the Code of Civil Procedure. With utmost respect to my esteemed brother A.N. Grover, J., I have my reservation. However, as per facts of the present case, I am of the view that it would be inappropriate to refer this point for consideration before a larger Bench. In the present case, it is worth keeping in view the assertion of the contesting respondents that an order of eviction against the petitioner has already become final and it is only to stall the execution of a valid order of the execution Court that the present suit has been filed by the plaintiff at the behest of the petitioner (who already stands evicted). It is precisely for this reason that the present petitioner filed an admission statement accepting the claim of the plaintiff and for identical reason did not lead any evidence nor cross-examined the witnesses of the plaintiff. In this view of the matter, I am of the view that to permit such a defendant to lead evidence at this stage i.e. after the closing of evidence by the contesting defendants, would, in fact, amount to allowing the plaintiff to fill up the lacuna in his case through the agency of the petitioner (defendant No.5). Thus, I am of the view that the trial Court rightly declined the petitioner''s prayer in this regard.

No illegality or irregularity is discernible in the well considered impugned order of the trial Court. Dismissed.