Sant Singh vs Mohan Singh

Swatanter Kumar, J.—Vide order dated 11.9.1998 learned Civil Judge (Junior Division), Hoshiarpur declined permission to defendant No. 3 to lead any evidence and fixed the case for rebuttal and arguments. Aggrieved from the said order defendant Sant Singh has filed this revision.

Mohan Singh had filed a suit for permanent injunction restraining Ram Parkash and Sohan Lal from blocking the passage shown in the site plan situated in Stehari, District Hoshiarpur. During the pendency of the suit an application was filed by Sant Singh under Order 1 Rule 10 CPC to be impleaded as party. The plaintiff had consented and this defendant had been impleaded as a party to the suit. Sant Singh filed written statement and admitted the claim of the plaintiff in entirety and took up the additional plea limited to the extent that the passage was being used by him and the plaintiff to the exclusion of others. The plaintiff took various opportunities to conclude his evidence but failed to do so. Vide order dated 3.1.1997 the evidence of the plaintiff was closed and subsequently by another order of the Court evidence of contesting defendant was also closed on 7.5.1997. After the case was fixed for arguments, learned counsel for defendant No. 3 had pressed the request for leading evidence which was declined vide the impugned order.

The contention raised on behalf of the petitioner while relying upon the case of Chailu Ram v. Chandi Ram and Ors. 1985 P.L.J. 149 is that the impugned order is liable to be set aside and the petitioner herein was entitled to lead evidence on merits. On the other hand, the learned counsel for the respondent has relied upon a judgment of a Division Bench of this Court in the case of Harminder Pal and Another Vs. Pritam Dass and Others, and Jagdish v. Daulat Ram and Ors. 1995 (2) CCC 140 to contend that having constituted the claim of the plaintiffs the petitioner had no right to lead evidence as claimed.

From the above narrated facts it is clear that the defendant Sant Singh was practically impleaded as a party at the instance and concession of the plaintiff. Sant Singh admitted the claim of the plaintiff in its entirety and only added that he was also using the same passage with the plaintiff. In such circumstances it will be totally un-necessary for any party to be permitted to lead evidence as no relief was claimed against the said defendant nor defendant had raised any controversy to the case of the plaintiff. However, if a controversy at all arises in relation to which such a defendant in the suit claims the right to lead evidence, he would have such a right only subject to the limitation that he must conclude his evidence prior to the commencement of evidence by the contesting defendants.

A Division Bench of this Court in the case of Harminder Pal and another (supra) held as under:-

"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 plaintiffs claim before the contesting defendant 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 plaintiffs claim. In other words, once a party admits the plaintiffs claim it steps into his shoes and will lead evidence, if any, along with 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.

xx xx xx xx 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 plaintiffs claim even after the contesting defendants have closed their evidence."

In the present case a glance on the issues framed by the learned trial Court clearly shows that defendant No. 3 present petitioner was not at any issue with the plaintiff nor any substantial or material controversy was required to be adjudicated upon between the plaintiff and defendant No. 3. He was merely a proforma supporting defendant. Thus, the law laid down by the Division Bench would be squarely applicable to the present case. I find no merit in this revision petition. The same is hereby dismissed. There shall be no order as to costs.