Ram Lal vs Trilok Singh Chauhan

V.K. Bist, J.—Heard learned Counsel for the parties.

Present writ petition has been filed by the petitioner for quashing the order dated 10.03.2010 passed by Judge, Small Cause Court/ Additional District Judge Rishikesh in SCC suit No. 32 of 2001.

Brief facts of the case are that the respondent instituted SCC Suit No. 32/2001 on 04.12.2001 before the JSCC/Court of District Judge, Dehradun against the petitioner for recovery of arrears of rent demanded in the said suit. On 07.09.2001 notice was issued by plaintiff/respondent to defendant/petitioner for demand of arrears of rent. Neither in the notice dated 07.09.2001 nor in the plaint respondent sought recovery of possession. The petitioner filed a written statement in the above SCC suit No. 32/01 on 06.09.2002. In the written statement petitioner stated that he is a tenant since October 1994 @ Rs. 250/- per month inclusive of all taxes. He was paying rent regularly but respondent refused to accept the same. The petitioner without any delay on receiving the summons in the above suit deposited entire arrears of rent in the trial court before the first day of hearing. The respondent filed his replication against W.S. filed by petitioner on 28.10.2002 and thereafter the file was fixed for framing of issues. On 13.05.2004 issues were framed and the file was fixed for plaintiff/respondent''s evidence. On 03.07.2006 plaintiff/respondent filed application for amendment of plaint to incorporate relief of eviction in plaint. Petitioner filed his objection against the amendment application dated 03.07.2006. Learned trial court vide its order dated 25.07.2006 rejected the application for amendment filed by the plaintiff/respondent holding the same to be not legally maintainable.

This High Court vide its order dated 08.08.2008 allowed the writ petition filed by respondent and permitted him to file amended memo of petition before the trial court. On 08.08.2008 at the time of disposal of writ petition before this Court respondent did not stated before this Court that notice dated 07.09.2001 which was the basis of the suit was only for demand of arrears of rent and not for termination of tenancy of the petitioner and for eviction of petitioner. On 08.07.2009 defendant/petitioner started cross examining respondent''s witness. On 22.01.2010 petitioner filed application for adjournment of the case as counsel for the petitioner was out of station. But the learned trial court without considering the request of learned Counsel for the petitioner rejected the application for adjournment and closed the opportunity to cross examine PW1 of the petitioner. On 15.02.2010 petitioner filed application supported with affidavit for recalling the order dated 22.01.2010 and to allow the petitioner to cross examine the plaintiff/respondent''s witness.

The respondent filed his objections against the application dated 15.02.2010 of the petitioner. Respondent has not filed any counter affidavit denying the contents of affidavit dated 15.02.2010 of the petitioner.

By way of impugned order dated 10.03.2010 though the application paper No. 130C dated 15.02.2010 for recalling the order dated 22.01.2010 was allowed but a condition was imposed that by the date fixed i.e. 19.03.2010 defendant will ensure to cross examine the plaintiff witness and to produce his entire evidence on the same day and on his failure to do so his right to file evidence will automatically be deemed to be closed. Aggrieved by the order dated 10.03.2010 present writ petition is filed.

Learned Counsel for the petitioner submitted that by way of order impugned petitioner is directed to cross examine plaintiff witness on same day and on the same day he has to produce his entire evidence, and on his failure to do so the opportunity to file evidence would automatically be closed.

Learned Counsel for the petitioner submitted that this condition imposed by trial court in impugned order is illegal, as a party cannot be directed to file affidavits of all the witnesses at once. Also some witnesses may have to be summoned under order 16 CPC. In support of his contention he relied upon judgment of Bombay High Court reported in 2009 (3) Civil Court Cases page 496 which says as under:

Civil Procedure Code, 1902. Order 18 Rule 4- Witnesses, Party has a choice as to number of witnesses to be examined- Party cannot be directed to file affidavit of all the witnesses at one and the same time.

In reply to this learned Counsel for the respondent argued that order 16 is not applicable in small cause suit. He further submitted that in small cause suits summons are issued for final disposal of the suit and as such trial court has not committed any error of law in directing the petitioner to file his entire evidence on the same day. In support of his contention he relied upon Order 5 Rule 9 C.P.C. which reads as under:

Summons to be either to settle issues or for final disposal- The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly.

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

Learned Counsel for the respondent also relied on the judgment of the Hon''ble Apex Court reported in 1999(8) SCC page 31 and referred para 9, 10, & 11 of the said judgment.

So far as the method of issue of summons in small cause suits is concerned, the Code of Civil Procedure, 1908 makes a special provision.

Now order 5 Rule 1(1) contains the general procedure in suits, namely, that the summons directs the defendant to appear on the notified date to answer the claim on a day specified therein and that the court may also direct him to file his written statement. Further, Order 5 Rule 2 states that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. This provision is intended to enable the defendant to have notice of the contents and relief claimed in the suit.

However, the provision to Order 5 Rule 5, which deals with small cause suits, lays down a slightly different procedure than what is stated in Order 5 Rule 1 and reads as follows:

The court shall determine, at the time of issuing the summons whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

Thus, while in other suits the court has to decide at the time of summons whether it shall be for settlement of issues or for final disposal- so far as suits heard by a Court of Small Causes are concerned, the summons shall be for the final disposal, the defendant has also to be directed to produce his witnesses too on the day fixed for his appearance.

Learned Counsel for the petitioner submitted that argument raised by the counsel for the respondent is not sustainable in law and Apex Court judgment relied upon by counsel for the respondent is not applicable to the present case as in the present case summons were issued for framing of issues.

He further submitted that contention for counsel for the respondent with regard to non applicability of order 16 CPC to SCC Court is not sustainable. He argued that as per Section 17 of Provincial Small Cause Courts Act, provisions of Civil Procedure Court shall apply to SCC Court except excluded under order 50 CPC 16:

Provincial Small Cause Courts- The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say-

(a) so much of this schedule as relates to to -

(i) suits excepted from the cognizance of a Court Small Causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and orders:

Order II, Rule 1 (frame of suit);

Order X, Rule 3 (record of examination of parties);

Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment;

Order XVIII, Rules 5 to 12 (evidence);

Order XLI to XLV (appeals);

Order XLVII, Rules 2,3,5,6,7 (review);

Order LI.

He submitted that in view of above provisions order 16,17 & order 18 Rule 1 to 4 are fully applicable to small cause court.

He further submitted that trial court ought not to have passed the impugned order directing petitioner to file his entire evidence at once as if petitioner on the day fixed for filing evidence do not file his evidence court have power under order 17 Rule 2 & 3 CPC to proceed with the matter forthwith, and as such kind of conditions could not have been imposed.

Procedure if parties fail to appear on day fixed- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

Explanation- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its direction, proceed with the case as if such party were present.

Court may proceed notwithstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2.

After hearing learned Counsel for the parties, this Court is satisfied that compliance of order dated 10.03.2010 passed by trial court is not feasible. Consequently, the order dated 10.03.2010 passed by Judge, Small Cause Court/ Additional District Judge, Rishikesh in SCC Suit No. 32 of 2001 is set aside. Since, the SCC Suit No. 32 of 2001 is pending for last 9 years, in the interest of justice, this Court is directing the trial court to proceed further in the following way:

On 15.04.2010 the defendant will cross examine the plaintiff witness. Same day he will also supply a copy of the list of his witnesses.

The defendant/petitioner will file the affidavit of his witnesses on 20.04.2010 and the same will be cross examined on 21.04.2010. In case the defendant/ petitioner wants to file affidavit of other witness also he will file in the Court on 21.04.2010 and in any case he does not file affidavit of other witnesses on 21.04.2010 he can file the same before the previous witnesses is cross examined. The trial court will proceed on day today basis.

Learned trial court is directed to hear the case on day today basis and conclude the case expeditiously.

The writ petition is disposed of.