Sajjan Raj vs Sushil Agarwal and Others

Arun Bhansali, J.—This writ petition under Article 226 and 227 of the Constitution of India is directed against the order dated 07.07.2014 passed by the trial court, whereby, the application filed by the petitioner under Order VI, Rule 17 CPC has been rejected.

The respondent-plaintiff filed a suit for specific performance; during the pendency of the suit the trial court closed evidence of the plaintiff on 19.05.2007, however, he was granted an opportunity to submit an application for leading evidence along with the proof of accident and treatment; on 21.07.2007 an application was filed by the plaintiff, inter alia, indicating the facts about his admission in the hospital at Ahmedabad along with the medical certificate and prayed for reopening of evidence; it was claimed by the petitioner that the facts stated in the application were false; however, the trial court after hearing the parties vide its order dated 04.12.2007 allowed the application and afforded an opportunity to the plaintiff to lead evidence.

It appears that the petitioner filed an FIR regarding the alleged forged medical certificate, which was registered by the Police and, upon investigation, it was revealed that the certificate was forged and a charge-sheet against the plaintiff was filed on 25.05.2012; whereafter the petitioner initially filed an application seeking recall of the order dated 12.04.2007, whereby, the plaintiff was granted permission to lead evidence, which application came to be rejected by the trial court on 02.08.2013 and the order was upheld in S.B. Civil Writ Petition No. 10282/2013 filed by the petitioner by order dated 27.09.2013.

Whereafter, the petitioner filed an application seeking amendment in the written statement, inter alia, seeking to introduce the facts regarding closing of evidence, application filed by the plaintiff along with alleged forged documents, order passed by the trial court reopening the evidence and the facts revealed by the police investigation.

The application was resisted by the plaintiff and the trial court by its order dated 07.07.2014 came to the conclusion that if the plaintiff has got his evidence reopened, based on forged documents, proceedings against him are pending before competent criminal court, in a suit for specific performance, if the amendment was permitted, the nature of suit would be changed and it cannot be said that such an amendment was necessary for determining the real controversy between the parties and, consequently, dismissed the application.

It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application; the plaintiff has played fraud with the courts and he cannot be permitted to go scot free in the pending civil suit; the trial court was not justified in refusing to amend the written statement so as to bring the facts on record and, therefore, the order impugned cannot be sustained.

I have considered the submissions made by learned counsel for the petitioner.

From the perusal of the material on record, it would be seen that the evidence of the plaintiff was re-opened based on certain documents, which are alleged to be forged by the petitioner; the said facts, if the same were true, had bearing only on the order permitting the plaintiff to lead evidence; the petitioner by way of filing application seeking recall of the order permitting evidence availed his remedy, which application was rejected by the trial court and the order was upheld by this Court.

While dismissing the writ petition, this Court observed as under:-

"The learned trial court has dismissed the application of the petitioner for recalling its order dated 04.12.2007 passed by the trial court mainly on the ground that in connection with the production of the false and fabricated documents by the respondent, a criminal case is already pending before the competent criminal court and, therefore, it is not in the interest of justice to conduct a parallel inquiry in respect of the very said documents by the civil court. The learned trial court has also observed that the matter is of the year 1991 and is one of the oldest pending cases of the court. It is also observed by the learned trial court that by allowing the respondent-plaintiff to produce his evidence, the rights of the defendant will not be affected as they have been provided full opportunity to cross-examine the said witnesses.

It is true that the medical certificate produced by the defendants before the learned trial court on the basis of which the learned trial court has allowed the respondent to produce his remaining evidence vide order dated 04.12.2007, are found to be false and fabricated in the police investigation and a criminal case for the offence punishable under sections 465 and 471 IPC is pending before the competent criminal court. However, it is also not in dispute that no final order has been passed by the competent criminal court regarding the guilt of the respondent. The learned trial court has rightly observed that when the proceedings before the competent criminal court in respect of false and fabricated medical certificates is pending trial, it is not in the interest of justice to conduct a parallel enquiry. The learned trial court has also taken into consideration that the matter is regarding specific performance of contract, which is to be decided on the basis of the evidence of the parties and is pending since 1991 and, therefore, it is not necessary to recall the order dated 04.12.2007, whereby the respondent-plaintiff was allowed to produce his remaining evidence.

After going through the entire documents placed on record and the impugned order, this Court is of the opinion that the learned trial court has not committed any illegality in rejecting the application preferred by the petitioner under section 151 CPC for recalling the order dated 04.12.2007, particularly in the facts and circumstances of this case."

The fact that once the similar plea raised by the petitioner seeking recall of the order permitting the plaintiff to lead evidence, had been rejected by the trial court and upheld by this Court, the petitioner cannot be permitted to raise the said plea all over again by way of seeking amendment in the written statement, as permitting such an amendment would be to negate the order already passed by the trial court; further, the trial court was perfectly justified in coming to the conclusion that the plea sought to be introduced by way of amendment cannot be said to be necessary for the purpose of determining the real questions in controversy between the parties in a suit for specific performance.

In view of the above discussion, there is no substance in the writ petition and the same along with stay petition are dismissed.