Ram Kumar and Others vs Suman Sharma and Others

Rakesh Kumar Jain, J.

In order to appreciate the controversy involved in this case, per-degree table reflecting relationship between the parties is necessary to be noticed:

Civil Suit RT No. 20 of 2003 was filed by Suman widow of Sunil Dutt along with her son Abhinav Sharma against Maninder Dass father of Sunil Dutt, claiming 1/3rd share by way of succession in property left behind in the hands of Maninder Dass. This suit be called the first suit.

The other Civil Suit No. 252 was filed by three daughters of Maninder Dass, namely, Anush Sharma, Sudesh Kumari and Ranjita Kumari against Suman Sharma, Abhinav Sharma, Ram Kumar, Sham Kumar and Jaspal Kaur. In this suit, they have claimed 1/6th share in the property left behind by Maninder Dass, by way of natural succession. This suit would be called the second suit.

Both the suits were pending. Learned counsel for the petitioners has submitted that in the second suit, the evidence of the plaintiffs is already over and while examining DW-1 to DW9 their affidavits in their examination-in-chief are exhibited and the original documents are tendered but the defendants deferred the cross examination.

The respondent who is the plaintiff in the first suit, filed an application in the second suit under Section 10 of the Code of Civil Procedure for staying the proceedings but vide order dated 06.02.2013, the following order was passed by the trial Court which reads as under:

"I am of the opinion that present suit cannot be stayed under Section 10 of the Code of Civil Procedure; however, in order to avoid repetition of evidence and conflicting judgments and to save precious time of the Court, both the suits can be consolidated and can be disposed of with one judgment as property in dispute in both the suit is same. Hence, application under Section 10 of the Code of Civil Procedure filed by the applicant stands dismissed; however, the present suit filed by the plaintiffs along with the counter-claim filed by defendants No. 3 and 4 is ordered to be consolidated with the previous suit filed by defendants No. 1 and 2 titled as ''Suman Sharma and another v. Maninder Dass and others''. It is made clear that the evidence already led by the parties in both the suits shall be read to decide the matter, however, the remaining evidence shall be led in the suit titled as ''Suman Sharma and another v. Maninder Dass and others'', which shall be read in both the suits."

After consolidation of both the suit, this order dated 06.02.2013 became final as it was not challenged by either of the parties. However, an application under Section 151 of the Code of Civil Procedure was filed by the petitioners for considering the evidence (examination-in-chief) given by defendants No. 3 and 4 (petitioners herein in the second suit). The said application was dismissed on 02.05.2013 and the following order was passed:

"After consolidation of suit titled as ''Anush Sharma and others v. Suman Sharma and others'', with the suit titled as ''Suman Sharma and another v. Maninder Dass and others'', defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 have already examined DW-3 Ran Bahadur Singh ad party examined DW-4 Ram Kumar. It is settled law that evidence of a witness is to be read as a whole i.e. Examination-in-chief plus cross examination. The only examination-in-chief of a witness without his cross-examination cannot be considered as evidence. It has been mentioned in order of consolidated dated 06.02.2013 that the evidence already led by the parties in both the suits shall be read to decide the matter; however, the remaining evidence shall be led in the suit titled as ''Suman Sharma and another v. Maninder Dass and others'', which shall be read in both the suits. Thus the evidence led by the parties in the suit titled as ''Anush Sharma and others v. Suman Sharma and others'', prior to the consolidation shall be read to decide the matter but the affidavits of the witnesses of defendant Nos. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 who were not cross-examined in that suit before consolidation cannot be looked into and they cannot be utilized for cross examination in the suit titled as ''Suman Sharma and another v. Maninder Dass and others'',. Moreover, the present suit titled as ''Susma Sharma and another v. Maninder Dass and others'', is pending for evidence of defendant Nos. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 and they have their opportunity to lead evidence. As such, no prejudice will be caused to the rights of defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 if they are not allowed to put their witnesses for cross-examination in the present suit n the basis of their affidavits already tendered in the consolidated suit titled as ''Anush Sharma and others v. Suman Sharma and others'', as they have the opportunity to file their fresh affidavits in the present suit. In view of the above discussion, I am of the considered opinion that application of defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 for allowing them to put their witnesses for cross-examination in the present suit on their affidavits already tendered in the consolidated suit titled as ''Anush Sharma and others v. Suman Sharma and others'', is devoid of any merits and deserves dismissal. Hence, application under reference stands dismissed. The suit is adjourned to 06.05.2013 for evidence of defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 on own responsibility."

Thereafter, the petitioners filed another application seeking withdrawal of the original documents produced in the Court along with the affidavits i.e. examination in chief of the witnesses in the second suit for the purpose of tendering in the first suit. The said application has also been dismissed by the impugned order Annexure P-9. The relevant portion of the impugned order reads thus:

"The applicants/defendants have not disclosed under which provision of the Code of Civil Procedure, they have filed the present application. Defendant Nos. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 have the opportunity to file their fresh affidavits in the present suit as their evidence has not been closed yet. The copies of documents, which were produced by witnesses of defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 in the consolidated suit titled as "Anush Sharma and others v. Suman Sharma and others'', may also be proved on record under rules. Therefore, no prejudice will be caused to the rights of defendants No. 2 and 3 and LR Nos. (d), (e) of defendant No. 1 if the documents tendered into evidence along with the affidavits by their witnesses in the consolidated suit titled as ''Anush Sharma and others v. Suman Sharma and others'', are not returned to them as they have the opportunity to file their fresh affidavits in the present suit and copies of the documents may be proved on record under rules."

Learned counsel for the petitioners has argued that he had not opposed the consolidation of both the suits as vide order dated 06.02.2013, it was made clear by the trial Court that the evidence already led by the parties shall be read to decide the matter and the remaining evidence shall be led in the first suit. In the second suit, the evidence recorded in the first suit cannot be taken into consideration because the cross-examination has been deferred. He has also submitted that the trial Court should have allowed the petitioners to withdraw original documents and affidavits tendered in examination-in-chief to produce in the first suit which is being tried and is going to be decided as it would have the effect of deciding the second suit as well.

Learned counsel for the respondents has argued that there is no provision in the Code of Civil Procedure for returning the documents which have already been tendered in a pending suit. In this regard, he has drawn my attention to provisions of Order 13 Rule 9 of the Code of Civil Procedure. He has also argued that even the revision petition under Article 227 of the Constitution of India is not maintainable in respect of an application filed under Order 13 Rule 9.

It is also submitted by him that even otherwise no prejudice is going to be caused to the petitioners as the documents allegedly tendered in the second suit could be proved by him by producing copies thereof as the lead case is at the stage of evidence of the petitioners.

I have heard learned counsel for the parties and perused the record of the case.

In so far as facts of the case are concerned, there is no dispute that the property involved in this case is the same and the only issue is with regard to the extent of share being claimed by the parties. The plaintiffs have claimed 1/3rd share in the property whereas in the second suit filed by three daughters of Maninder Dass are claiming 1/6th share along with their three brothers. In the second suit, the plaintiffs had already led their evidence and it was at the stage of the evidence of the defendants/petitioners. They had led their evidence by producing affidavits in examination-in-chief and tendered original documents.

At that time, the first suit was at the stage of evidence of the plaintiffs. The defendants in the second suit did not opt to cross-examine the witnesses of the petitioners and their cross-examination was thus deferred though they have produced as many as nine witnesses. Eventually, the plaintiffs in the first suit filed an application under Section 10 of the Code of Civil Procedure for seeking stay of the proceedings of the second suit in which the order of consolidation of both the suits was passed in which it was clarified by the Court that evidence already led by the parties in both the suits shall be read to decide the matter. However, the remaining evidence shall be led in the suit titled as Suman Sharma and another v. Maninder Dass and others,. According to the aforesaid observations, the evidence in both the suit would decide the matter between the parties and the evidence which had already been led in the second suit would also be taken into consideration. The question would be as to whether the evidence led by the defendants/petitioners in the second suit tendering their affidavits in examination-in-chief and the original documents would fall within the definition of evidence until and unless the witnesses are cross-examined by the defendants therein. To my mind, it would not fall within the purview of the evidence as the cross-examination has been deferred. It would have been an altogether different matter if the opportunity had been given to the defendants to cross-examine the witnesses and after availing it, they had not cross-examined the witnesses. The Court would have recorded in the zimnis that opportunity has been given but not availed. In those circumstances, the documents tendered in examination-in-chief would have been read. The petitioners then to be more cautious'' filed another application for considering the evidence (examination-in-chief) given by them in the second suit in the present case, being tried as a lead case but the said application was also rejected by the learned trial Court on the ground that they would have the opportunity to file fresh affidavit in the present suit. The petitioners then filed the application for withdrawal of the original documents and their affidavits tendered in examination-in-chief for the purpose of tendering in the suit but this application has also been dismissed by the trial Court vide the impugned order on the ground that the documents cannot be returned and they would have the opportunity to file fresh affidavits in the present suit and copies of documents may be proved on record under the Rules. The order of learned Court below is totally illegal and cannot be accepted. Although, order 13 Rule 9 does not talk of return of the admitted documents in a pending suit and provides that parties would be entitled to receive the documents back when the suit is disposed of which is not the position in the present case.

In this case the facts are very peculiar because the petitioners have been left high and dry by the trial Court as neither their prayer has been allowed by the trial Court for allowing the defendants to cross-examine the witnesses whose affidavits have been, tendered in examination-in-chief in the second suit nor the Court is allowing the petitioners to withdraw their affidavits tendered in examination-in-chief with the original documents to tender them in the first suit. The trial Court has thus erred in the exercise of its jurisdiction as it should have taken atleast one stand and should not have dismissed the application on the ground that no prejudice is going to be caused. The suit has to be decided on the basis of original documents which are there in the second suit and the trial Court has observed that the copies there of can be produced in the lead case. If the lead case is to be decided then the petitioners must be permitted to produce original documents so that dispute between the family members should be effectively adjudicated. With these observations, the present revision petition is allowed. The impugned order Annexure P-9 is hereby set aside. However, it is directed that the affidavits filed in examination-in-chief along with the original documents in the second suit be returned back for the purposes of tendering in evidence, in the first suit.