Rajinder Tiwari vs Kedar Nath (Deceased) Through Lrs

CIVIL APPEAL Nos.3282­3283 OF 2019 (Arising out of S.L.P.(C) Nos.20295­20296 of 2017)

Rajinder Tiwari ….Appellant(s)

VERSUS

Kedar Nath(Deceased) Thr. L.Rs. & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are directed against the final

Signature Not Verified judgment and order dated 03.11.2016 passed by Digitally signed by ANITA MALHOTRA Date: 2019.03.28 17:24:57 IST Reason: the High Court of Delhi at New Delhi in R.S.A.

1 No.188 of 2010 whereby the High Court allowed the

RSA filed by the respondents herein and order dated

26.04.2017 in CM(Application) No.46865 of 2016 by

which the High Court dismissed the application for

re­hearing of the second appeal filed by the

appellant herein.

3. A few facts need mention hereinbelow for the

disposal of the appeals, which involve a short point.

4. The appellant is the plaintiff and the original

respondent (now represented by his legal

representatives) is the defendant in the civil suit out

of which these appeals arise.

5. The appellant(plaintiff) filed Civil Suit No. 147

of 2007 against the original respondent(defendant)

in the Court of Senior Civil Judge­cum­Rent

Controller(North East Dist.), Karkardooma Courts,

Delhi for permanent injunction in relation to the

suit property.

2

6. It is not in dispute that the defendant’s right

to file the written statement was closed by the

Senior Civil Judge with the result, the defendant

could not file his written statement and nor could

file any documentary evidence.

7. The plaintiff then adduced his evidence. The

defendant, however, could only cross­examine the

plaintiff's witnesses without his defence for want of

written statement.

8. By judgment/decree dated 01.02.2010, the

Senior Civil Judge decreed the plaintiff's suit by

passing a decree for permanent injunction as

prayed by him. The defendant felt aggrieved and

filed first appeal before the Additional District

Judge.

9. By judgment dated 26.07.2010, the first

Appellate Court dismissed the appeal and upheld

3 the judgment and decree passed by the Senior Civil

Judge.

10. The defendant felt aggrieved and filed second

appeal in the High Court of Delhi. By order dated

03.11.2016, the High Court allowed the second

appeal, set aside the judgment of the first Appellate

Court and dismissed the plaintiff's (appellant’s

herein) suit. Thereafter the plaintiff filed application

for re­hearing of the second appeal but the same

was dismissed by order dated 26.04.2017. Against

both the orders, the appellant(plaintiff) has filed the

present appeals by way of special leave in this

Court.

11. So, the short question, which arises for

consideration in these appeals, is whether the High

Court was justified in allowing the defendant's

second appeal and was, therefore, justified in

dismissing the plaintiff's (appellant’s herein) suit.

4

12. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow these appeals and while setting

aside the impugned orders, remand the case to the

Trial Court (Senior Civil Judge) for trying the civil

suit afresh on merits in accordance with law.

13. In our considered opinion, the need to remand

the case to the Senior Civil Judge for trying the civil

suit afresh on merits has occasioned for more than

one reason.

14. First, we find that the trial in the suit has not

been done satisfactorily inasmuch as the defendant

was not afforded an adequate opportunity to file his

written statement.

15. Second, in the absence of any written

statement, the defendant could neither adduce

proper evidence nor file any documentary evidence

in support of his case.

5

16. Third, the rights of the parties were, therefore,

decided by the two Courts (Trial Court and First

Appellate Court) by decreeing the suit and the High

Court by dismissing the suit on the basis of

insufficient evidence. In our view, it caused

prejudice to both the parties.

17. Fourth, we do not find any justifiable reason to

deny the defendant of his right to file the written

statement. He was entitled to file the written

statement and to adduce oral and documentary

evidence for contesting the suit on merits.

18. It is a settled law that all the contesting parties

to the suit must get fair opportunity to contest the

suit on merits in accordance with law. A decision

rendered by the Courts in an unsatisfactory

conducting of the trial of the suit is not legally

sustainable. It is regardless of the fact that in whose

favour the decision in the trial may go.

6

19. It is for these reasons, we are of the view that

these appeals deserve to be allowed and matter is

remitted to the Trial Court for deciding the civil suit

afresh on merits in accordance with law.

20. The respondents herein (legal representatives

of original defendant) are accordingly granted liberty

to file their written statement within one month

from the date of their appearance in the suit. The

Trial Court will thereafter frame issues arising in

the suit on the basis of the pleadings of the parties

and then allow the parties to adduce their evidence

in addition to the evidence already adduced. The

parties will also be allowed to file additional

documents, if they so wish.

21. The Trial Court will decide the suit on the

basis of the pleadings and the evidence adduced by

the parties uninfluenced by any judgment passed

by the Courts in this Case on the earlier occasion.

7

22. We, however, make it clear that we have not

expressed any opinion on the merits of the issue

while having formed an opinion to remand the case

to the Trial Court.

23. Let the trial be completed within one year.

Parties to appear before the Senior Civil Judge

(North East District), Karkardooma Courts, Delhi on

02.04.2019.

24. The appeals thus succeed and are accordingly

allowed. The impugned orders are set aside and the

suit is restored to its original file for being tried on

merits as indicated above.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI]

New Delhi;

March 28, 2019

8