Amarjit Singh and ors. vs Jawala Singh and ors.

A.L. Bahri, J. (Oral)

This revision petition is directed against order dated January 23, 1990, passed by the Sub Judge, Ist Class, Ludhiana, declining the request of the petitioners Amarjit Singh and others for adducing evidence (in rebuttal as described).

Jawala Singh entered into an agreement to sell the house in dispute in favour of Amarjit Singh on February 1,1983. Jawala Singh filed a suit for declaration that the aforesaid agreement was illegal and void and for permanent injunction restraining Amarjit Singh from interfering in his possession. This suit was filed on April 27, 1983. Thereafter Amarjit Singh filed a suit for specific performance of the aforesaid agreement of June 10, 1983. In the suit filed by Amarjit Singh, following five issues were framed :

(1) Whether defendant had entered into an agreement dated 1.2.1983 with the plaintiffs ? If so its effect ? OPP

(2) Whether plaintiffs are entitled to possession by specific performance of the abovesaid agreement ? OPP

(3) Whether present suit is liable to be stayed under section 10 C.P.C.? OPD

(4) If issue No. 1 is proved, whether agreement is without consideration and was result of misrepresentation, coercion and fraud on the defendant ? OPD

(5) Relief.

In the suit filed by Jawala Singh, following eight issues were framed :

(1) Whether agreement dated 1.2.1983 executed by the plaintiff in this case is null and void and has been executed without consideration, under pressure, coercion and fraud ? OPD

(2) Whether plaintiff is entitled to permanent injunction prayed for ? OPP

(3) Whether the suit of the plaintiff is not maintainable in the present form ? OPD

(4) Whether suit is bad for misjoinder of necessary parties ? OPD

(5) Whether the present suit has been filed ask counter blast to the suit filed by the defendant Nos. 1 to 3 ? If so its effect ? OPD

(6) Whether suit is properly valued for the purposes of courtfee and jurisdiction ? OPP

(7) Whether name of the defendant No. 3 has not been correctly given ? If so its effect ? OPD

(8) Relief.

Amarjit Singh led evidence. After his evidence was closed Jawala Singh led evidence. It was thereafter that six adjournments were allowed to Amarjit Singh to produce evidence in rebuttal but he failed. However, on January 23, 1990, learned Sub Judge passed the orders that Amarjit Singh could not produce evidence in rebuttal. Subsequently, a review application was filed which was again dismissed.

This is a peculiar situation where Amarjit Singh is plaintiff in his own suit and defendant in the suit filed by Jawala Singh. In his own suit he could only produce evidence in rebuttal on issue Nos. 3 and 4 as onus to prove these issues was placed on defendant Jawala Singh. It is stated that Amarjit Singh is not to produce any evidence on these two issues in rebuttal. As a matter of fact no evidence on issue No. 3 was required as the suits were consolidated. The attempt of Amarjit Singh after Jawala Singh had led evidence on the issues framed in his suit is to rebut his evidence. Otherwise there was no question of Amarjit Singh, who was a defendant in the suit filed by Jawala Singh, to produce evidence in rebuttal. He has an independent right to lead evidence in defence. In order elaborate to the pleadings of the parties in the suit filed by Jawala Singh it may be reiterated that the allegation was that the aforesaid agreement was executed without consideration, under pressure, coercion and fraud which was denied. On these pleadings issue No. 1, as reproduced above, was framed. It was only Jawala Singh who was to lead evidence on such an issue giving details of the fraud etc. and Amarjit Singh, as defendant in the suit, was not expected to lead any evidence earlier to Jawala Singh.

Learned counsel for the respondent relies upon a judgment of this Court in National Fertilizers Ltd. Bhatinda v. Municipal Committee, Bhatinda and anr., 1982 PLR 322, wherein the scope of order 18 Rule 3 of the Code of Civil Procedure was under consideration. On perusal of the aforesaid judgment I find that the same was not a case where two suits were consolidated and where plaintiff in one suit was added as defendant in the other suit and the ratio of the decision thus cannot be relied upon.

Since the evidence of the petitioner has not been closed on any other ground, the revision petition is allowed. The impugned order is set aside. Amarjit Singh and others, who are defendants in the suit filed by Jawala Singh, are allowed opportunity to lead evidence. Parties through their counsel are directed to appear in the trial Court on August 6, 1990. There will be no order as to costs.