Smt Ramkuwarbai vs M/S North Avenue Infrastructure Pvt Ltd Through Jitendra Sharma

The plaintiff has filed W.P. No.8089/2016 being aggrieved by order dated 3.11.2016 (Annexure P/6) by which her application filed under Order 18

Rule 1 read with Section 151 of the C.P.C. has been rejected.

The defendant has filed W.P. No.2022/2017 being aggrieved by order dated 3.11.2016 (Annexure P/6) by which the application filed under Order

14 Rule 5 of the C.P.C. has been rejected. The defendant has also challenged the order dated 25.11.2016 (Annexure P/11) by which - (i) application

filed under Order 16 Rule 1; (ii) application filed under 8 Rule 1; and (iii) application filed u/s. 138 of the Indian Evidence Act, have been rejected.

Facts of the case, in short, are that the plaintiff â€" Smt. Ramkunwarbai filed the suit for specific performance of contract and permanent injunction

against the defendant â€" firm represented through its Directors. According to the plaintiff, the defendant is the owner of residential plot No.23-A

area 30 x 50 ft. situated at Barwani, Tehsil & District Barwani. The plaintiff had agreed to purchased the said plot @ Rs.300/- per Sq.ft. in total

consideration of Rs.4,50,000/- by way of agreement to sale dated 20.11.2009. The defendant had also agreed to execute the sale-deed after obtaining

necessary permission from the Government Department. At the time of execution of the agreement to sale, the possession had been handed over to

the plaintiff. The plaintiff came to know that the Collector, Barwani had already granted the permission in the year 2011 to the defendant for

development of the colony and the sale of the plots. She immediately obtained the certified copy on 16.9.2015 and called upon the defendant to

execute the sale-deed by sending a legal notice dated 26.10.2015. When the defendant did not execute the sale-deed, then she filed the suit for

specific performance on 18.2.2016. 4. After receiving the summons from the Court, the defendant filed the written statement by specifically denying

the execution of the agreement to sale and receipt of amount of Rs.4,50,000/-. According to the defendant, the agreement to sale is a forged

document. The son of the plaintiff was working as Sub Engineer in the Department of Town & Country Planning Department, Khandwa. Lokayukta,

Indore has registered a case against him under the provisions of Prevention of Corruption Act. The blank papers signed by the defendant were

available with the son of the plaintiff which have been used in preparation of the agreement to sale in dispute.

On the basis of pleadings, the learned trial Court framed 5 issues for adjudication on 22.8.2016, which are as under :-

“01 D;k izfroknh dzekad 1 }kjk okfnuh ds i{k esa nkfo;k Hkw[kaM ds fodz; ds laca/k esa bdjkjukek fnukad 2010-2009 fu""ikfnr fd;k gSA

02 D;k okfnuh mDr bdjkjukesas ds vxzlj.k esa fodz; i= dk fu""iknu djkus gsrq bPNqd ,oa rRij jgh gSA

03 D;k izfroknhx.k nkfo;k LFkku dks vU;= varfjr djus gsrq rRij gSA

04 D;k izLrqr okn ifjlhek fo/kku ds izko/kkuksa ls ckf/kr gSA

05 lgk;rk ,oa oknO;;Aâ€​

The plaintiff filed an application under Order 18 Rule 1 of the C.P.C. stating that the defendant has alleged that the agreement to sale dated

20.10.2009 is a forged document, therefore, he may be directed to adduce the evidence first in respect of his pleading. The aforesaid application was

opposed by the defendant and the learned trial Court vide order dated 3.11.2016 has rejected the application holding that the plaintiff is having the

burden of proving her case first as she is under the statutory liability to start the evidence. Being aggrieved by the said order, the plaintiff has filed

W.P. No.8089/2016.

Simultaneously, the defendant has filed an application under Order 14 Rule 5 of the C.P.C. praying for framing of additional issues on the basis of

defence taken by him in the written statement. According to the defendant, the issues in respect of limitation, fraud, forgery, unregistered agreement

to sale, admissibility of the documents in evidence, availability of funds, etc. have not been framed, therefore, they are liable to be framed. The

aforesaid application was opposed by the plaintiff and thereafter, the learned trial Court vide order dated 3.11.2016 has rejected the application merely

on the ground that the defendant has not filed the counter claim in the suit.

The issues with regard to application under Order 18 Rule 1 of the C.P.C. filed by the plaintiff and the application under Order 14 Rule 5 of the

C.P.C. filed by the defendant are related to each other, hence, the same are being decided first.

Under Order 18 Rule 1 of the C.P.C., the plaintiff has a right to begin the evidence or where some additional facts alleged by the defendant, the

plaintiff is not entitled to any part of the relief which he seeks, in such a case, the defendant has a right to begin. Under Order 18 Rule 3, where there

are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on

those issues or reserve it by way of answer to the evidence produced by the other party. In the present case, the existing issues are in respect of,

whether the defendant had executed agreement to sale dated 20,.10.2009 for the sale of suit plot in favour of the plaintiff? The plaintiff has filed the

suit for specific performance of contract, therefore, she has a right to start the evidence to prove the execution of agreement to sale, therefore, the

learned trial Court has not committed any error while rejecting the application under Order 18 Rule 1 of the C.P.C. filed by the plaintiff, at this stage.

The defendant has filed the application under Order 14 Rule 5 of the C.P.C. for framing some additional issues. Under Order 14 Rule 5 of the

C.P.C., the issue arises when a material proposition of facts or law is affirmed by one party and denied by the other. The material propositions are

those propositions of law or facts which the plaintiff alleges in order to show a right to sue and the defendant alleges in order to constitute his defence.

Therefore, the issues are liable to be framed on the basis of material propositions given by the plaintiff and put up by the defendant by way of defence.

In the present case, the issue No.1 and 2 have been framed only on the basis of propositions given by the plaintiff and no issues have been framed on

the propositions given by the defendant. For framing the issues on the basis of propositions given by the defendant, filing of counter claim is not

necessary. Therefore, the learned trial Court has wrongly rejected the application filed by the defendant under Order 14 Rule 5 of the C.P.C. Hence,

the impugned order dated 3.11.2016 so far as rejection of application under Order 14 Rule 5 of the C.P.C. is concerned, is set aside and the matter is

remitted back to the learned trial Court to frame the additional issues on the basis of material propositions given by the defendant in his defence.

If the learned trial Court frames the additional issues on the basis of material propositions given by the defendant, then the plaintiff would be at

liberty to file fresh application under Order 18 Rule 1 of the C.P.C. and if such application is filed, then the learned trial Court is directed to decide the

same afresh keeping in view the additional issues framed on the application filed by the defendant.

Vide order dated 25.11.2016, the learned trial Court has rejected the application filed by the defendant under Order 16 Rule 1 of the C.P.C. By

way of the said application, the defendant has prayed that the list of evidence be taken on record and Government employees/officers be summoned

through Court. The defendant has sought - (i) production of Inward Register of 2009 from the office of Town & Country Planning Department,

Khandwa; and (ii) Income tax return and the balance-sheet of the year 2008-09, 2009-10, 2010-11 of the plaintiff submitted in the Income Tax Office,

Khandwa. According to the defendant, by mistake, he could not file the said documents at the time of filing the written statement. The learned trial

Court vide order dated 25.11.2016 has also rejected the aforesaid application that these documents are not necessary in the suit filed by the plaintiff

for specific performance of contract i.e. agreement to sale and the balancesheet is a private document which can be called only in special

circumstances.

At present, the case is at the stage of plaintiff’s evidence and the stage of defendant’s evidence has not come so far. The defendant has

filed the application at an early stage, which he ought to have filed after closure of the plaintiff’s evidence. Even otherwise, this Court has

remanded the case for framing additional issues and on an application under Order 18 Rule 1 of the C.P.C. Therefore, the order dated 25.11.2016 is

set aside with the liberty to the defendant to file a fresh application, if occasion so arises.

Vide order dated 25.11.2016, the learned trial Court has also rejected the application under Order 8 Rule 1 of the C.P.C. The defendant has filed

certified copy as well as photocopy of certain documents. The learned trial Court has rejected the photocopy as the same are not admissible in

evidence.

At this stage, the learned trial Court has wrongly rejected the aforesaid application. The documents can be taken on record, but the burden lies on

the defendant to prove the same by way of evidence. The defendant may prove the photocopy as secondary evidence, if occasion so arises. Hence,

so far rejection of the application under Order 8 Rule 1 of the C.P.C., the order dated 25.11.2016 is set aside.

The learned trial Court has rejected the application u/s. 138 of the Indian Evidence Act. By way of the said application, the defendant has sought

direction to the plaintiff to come in the witness box along with balance-sheet of the year 2008-09, 2009-10 and 2010-11 and the record of the financial

year 2013-2014. In the considered opinion of this Court, the learned trial Court has rightly rejected the application as it is the discretion of the plaintiff

to file the documents of his choice in order to prove his/her case. The defendant cannot insist for production of particular documents u/s. 138 of the

Indian Evidence Act. There are other provisions in the C.P.C. in which the defendant can exercise his right for production of the documents. Hence,

no interference is called for.

With the aforesaid, these writ petitions stand disposed of.

No order as to costs.