Seeta Ram and Others vs Gulab Chand

Arun Bhansali, J.—This writ petition under Article 227 of the Constitution of India has been filed by the petitioners aggrieved against the order dated 27.01.2014 passed by the trial court, whereby, the application filed by the petitioners-defendants seeking exclusion of the affidavit filed in evidence under Section 151 CPC has been rejected and the plaintiff has been permitted to produce his evidence.

Respondent-plaintiff filed a suit for permanent injunction against the petitioners-defendants in the year 2000; it appears that the suit was fixed for plaintiff''s evidence on 11.04.2005, when the same was closed; whereafter, plaintiff - Gulab Chand and witness Bakshi Ram were appeared in the Court but, their evidence was not recorded.

The trial court on an application filed by the plaintiff, by its order dated 19.09.2006 came to the conclusion that the plaintiff was granted sufficient opportunities to lead evidence and the plaintiff was not present for evidence in time and came thereafter and produced his affidavit along with witness Bakshi

Ram and, therefore, recording of their evidence appears to be justified and directed as under:-

It appears that the order dated 19.09.2006 (supra) became final and for some reason or the other the matter remained pending before the trial court; whereafter, it was noticed on 09.04.2013 that witness Bakshi Ram had died; however, till the said date, the plaintiff neither examined himself nor produced any witness and thereafter filed affidavits of two witnesses Prahlad and Manak Chand; whereafter, the petitioners filed the present application under Section 151 CPC seeking exclusion of the affidavits of witnesses Prahlad and Manak Chand from the record, as by order dated 19.09.2006 only plaintiff and Bakshi Ram were permitted to be examined while re-opening the evidence.

A reply to the application was filed by the respondents, inter alia, indicating that for a long time the matter was pending before the High Court and, therefore, the plaintiff could not produce his evidence; it was claimed that the plaintiff had produced his affidavit and that of Bakshi Ram long time back and as Bakshi Ram died in between, the evidence of other witnesses was required to be produced and as the evidence of plaintiff was still on, he can produce any witnesses.

The trial court after hearing the parties came to the conclusion that as Bakshi Ram could not be produced, the production of other witnesses would be justified and rejected the application filed by the petitioners.

It is submitted by learned counsel for the petitioners that the order dated 19.09.2006 was categorical, whereby, the plaintiff and his one witness Bakshi Ram were permitted to be examined; however, for over seven years, the said witness was not examined and now affidavits of other witnesses on account of death of Bakshi Ram cannot be permitted to be produced so as to review or recall the order dated 19.09.2006 and, therefore, the order impugned deserves to be quashed and set aside.

Learned counsel for the respondents supported the order passed by the trial court; it was, inter alia, submitted that as the affidavit of Bakshi Ram had already been filed and he could not be cross-examined, the plaintiff is entitled to lead further evidence and the order passed by the trial court does not call for any interference.

I have considered the rival submissions made by learned counsel for the parties.

On account of serious dispute between the parties as to whether at all the affidavit of Bakshi Ram was filed or not, by order dated 09.12.2014, learned counsel for the respondent was directed to produce certified copy of the affidavit of Bakshi Ram, said to have been filed after order dated 19.09.2006 as claimed in the reply to the application filed by the petitioners; today, learned counsel for the respondent fairly conceded that no such affidavit of Bakshi Ram was filed.

A bare look at the order passed by the trial court on 19.09.2006 clearly reveals that while permitting cross-examination of the plaintiff and production of Bakshi Ram, the trial court clearly stipulated that except for the said witnesses, the plaintiff would not be permitted to produce any other witness; the evidence of the plaintiff, already closed on 11.04.2005, was re-opened conditionally, specifically stipulating the scope of plaintiff''s evidence; whereafter, despite passage of seven long years, the plaintiff failed to either produce Bakshi Ram in evidence or produce his affidavit under Order XVIII, Rule 4 CPC, which clearly shows the conduct of the plaintiff in essentially abandoning the said witness.

It appears that taking advantage of unfortunate death of Bakshi Ram, the petitioners introduced two witnesses by filing fresh affidavits; filing of such affidavits was apparently contrary to the specific stipulation made in the order dated 19.09.2006; merely because the witness other than the plaintiff, as permitted under order dated 19.09.2006 i.e. Bakshi Ram had died, cannot entail to the benefit of the plaintiff so as to produce other witnesses and frustrate the specific stipulation in the order 19.09.2006 and enlarge the scope of evidence, which already stood restricted by order dated 19.09.2006.

It is well settled that principles of res judicata applies between stages of the same suit and, therefore, once the order dated 19.09.2006 had been passed by the trial court, restricting the right of the plaintiff to lead evidence by way of production of only one witness i.e. Bakshi Ram other than plaintiff himself, by a subsequent act, the order dated 19.09.2006 could not be negated.

In view of the above discussion, the writ petition filed by the petitioners is allowed. The order dated 27.01.2014 passed by the trial court is set aside and the application filed by the petitioners under Section 151 CPC is allowed and the affidavits in evidence, produced by the plaintiff, of witnesses Prahlad and Manak Chand are ordered to be placed in Part-D. No order as to costs.