Chatter Bhuj vs Raj Kumar Khanna

Ashok Bhan, J.—Decree-holder Raj Kumar Khanna, respondent in this revision petition (hereinafter referred to as the decree holder) filed a suit against Chatter Bhuj Gupta petitioner defendant-JD (hereinafter referred to as J.D.) for specific performance of an alleged agreement entered between the parties. Shri Chatter Bhuj Gupta as per pleadings of the parties remained out of India in connection with his export business. At the time of filing of suit, Chatter Bhuj Gupta was stated to be living in United States of America. In the suit he was purportedly represented by his general power of attorney Mohinder Singh. Mohinder Singh general power of attorney suffered a consent decree and sale deed was executed in pursuance to the said decree by way of specific performance of the said contract.

Chatter Bhuj Gupta judgment-debtor filed an application under order 9 Rule 13 C.P.C. for setting aside the decree on the allegation that he had never appointed Mohinder Singh as his general power of attorney to act on his behalf. On this application, trial Court framed the following issues :-

"1. Whether the application is not maintainable as alleged ? OPR

Whether the application is barred by time ? OPR

Whether the applicant has got no locus standi to file the application ? OPR

Whether the application has been filed by duly constituted attorney of applicant ? OPA.

Whether the defendant was not duly served when the case was called on for hearing ? OPP

Relief.

Decree holder filed an application that issue No. 1 be treated as preliminary issue. Trial Court allowed this application and ordered that issue No. 1 be treated as preliminary issue. Onus to prove issue No. 1 was on the decree holder. Decree-holder made a statement before the trial Court that he did not want to lead evidence on issue No. 1. On this statement, J.D. made a request that he be allowed to lead evidence regarding the maintainability of the application filed by him under order 9 Rule 13 C.P.C. which was allowed by the trial Court.

Decree holder being aggrieved by the said order of the trial Court filed C.R. No. 3666 of 1993 with the submission that onus to prove Issue No. 1 was upon the decree holder and if he did not lead any evidence in the affirmative then the JD could not be permitted to lead evidence in reply. This contention of the decree holder was not accepted. Revision petition was dismissed and it was held that in the peculiar facts and circumstances of the case, judgment-debtor had rightly been allowed to lead evidence. If the JD was not allowed to lead evidence then it would have been impossible for him to prove his case. While the revision petition was being dismissed Mr. Sarwan Singh, Senior Advocate, who had appeared for the decree holder in that revision petition made a prayer that the decree holder be also permitted to lead evidence after the JD has led his evidence to which counsel appearing on behalf of the JD did not object. Accordingly, the revision petition was dismissed with the modification that decree-holder petitioner would also be allowed to lead evidence on issue No. 1 after the JD led his evidence.

Both the parties led their evidence. Thereafter, JD made a prayer that he be allowed to lead evidence in rebuttal. This prayer was allowed by the trial Court on 11.1.1996 by passing the following order:-

"Cross examination of two PWs completed. Learned counsel for the respondent has closed his evidence on issue No. 1. Now the case is adjourned to 15.1.1996 for rebuttal and arguments."

On 17.1.1996, trial Court passed another order which has been impugned in this revision petition. Trial Court took a complete turn about and held that the petitioner could not be allowed to lead evidence in rebuttal.

The import of the earlier order passed by this Court in CR 3666 of 1993 was that onus on issue No. 1 had been wrongly placed upon the decree-holder. On the refusal of the decree-holder to lead evidence in the affirmative, the judgment- debtor was permitted to lead his evidence. Upon this, learned counsel appearing for the decree-holder prayed that the decree-holder be also allowed to lead his evidence after the judgment-debtor has led his evidence. Counsel appearing for the judgment-debtor did not object to the decree-holder leading evidence after the judgment-debtor has led his evidence. After both the parties had led their evidence in the affirmative, judgment-debtor sought to produce his evidence in rebuttal which was allowed by the trial Court initially on 11.1.1996, which order was later on modified by the impugned order.

The right to lead evidence by way of rebuttal has been denied to the petitioner on the ground that the same would be against the principles of natural justice that this Court while disposing of C.R. No. 3666 of 1993 did not give any permission to the JD to lead his evidence in rebuttal.

Trial Court has clearly erred. Once the decree holder was given permission to lead his evidence after the JD led his evidence, as a natural consequence thereof the JD has to be given a chance to lead his evidence in rebuttal to the evidence led by the decree holder in reply to the evidence led by the JD in the affirmative. As stated above, the onus on issue No. 1 in fact was wrongly placed upon the decree holder to prove issue No. 1 which should have been placed upon the judgment debtor.

For the reasons stated above, this revision petition is accepted and the impugned order of the trial Court is set aside. JD is permitted to lead evidence in rebuttal to the evidence led by the decree holder. Parties through their counsel are directed to appear before the trial Court on 11.3.1996 on which, date trial Court shall fix a date for recording the evidence of the JD in rebuttal. Counsel for the JD has stated that he would produce his evidence except the five official witnesses mentioned by him in his application dated 11.1.1996 at his own risk and responsibility on the date fixed by the trial Court. Trial Court shall give Dasti process to the petitioner to effect service on the official witnesses which the petitioner seeks to summon through the process of Court. Trial Court is directed to conclude the evidence in rebuttal within two months from the date of appearance i.e. 11.3.1996 and dispose of preliminary issue No. 1 on or before 31.5.1996. No costs.