Sukhan Lal vs Hara Singh and Others

Sunanda Bhandare, J.—This Civil revision u/s 115 of the CPC is directed against two orders of the Sub Judge, 1st Class, Delhi dated 17th April, 1979 and 26th July, 1979.

The facts of the case in brief are as follows:

The Respondent filed a suit for possession and damages/mesne profits against the Petitioner herein in respect of first floor portion of a double storeyed building bearing municipal No. XIV 10941-42 and 10946 (New), Mandir Road, Shidipura, Delhi. After the pleadings of the parties were complete, by order dated 17th April, 1979 the trial Court framed the following issues:

Is the suit bad for non-joinder of necessary parties? OPD

Whether the suit is not maintainable as it is? OPD

Whether the plaint is properly signed and verified? OPP

Whether Defendants No. 1 to 3 are tenants in the property? If so, whether this Court has no jurisdiction to try the suit? OPD

Whether the Plaintiff has got no locus standi to file the suit? OPD

To what relief if any the Plaintiff is entitled? OPP

and directed the parties to file their list of witnesses and fixed the case for evidence with a direction that the Defendant, i.e., the Petitioner herein shall lead the evidence first. Thereafter, the case was listed time and again for evidence of the Petitioner. On 26th July, 1979, the case was again listed for the evidence of the Petitioner. A statement was made by Defendants 1 to 3 that only Defendant No. 1 was to be examined on behalf of Defendants 1 to 3 and a prayer was made that Defendant No. 5 be examined first and thereafter Defendant No. 1 would make his statement. This prayer of the Petitioner was refused by the trial Court. An adjournment was sought for by the Petitioner/Defendants which was also rejected and the evidence of the Petitioner was closed.

The Petitioner herein at the initial stage filed the revision petition only against the order closing the evidence dated 26th July, 1979. The case came up before the Court on 17th Sept., 1979 and after hearing the counsel directed notice to issue to the Respondent to show cause why the petition be not admitted, however before the notice could actually issue, the Petitioner moved an amendment application being CM 2145/79. The Petitioner by way of this amendment application sought to amend the revision petition and prayed that the Petitioner be permitted to add a few additional grounds and also amend the prayer clause. By this amendment, the Petitioner sought to challenge even the order of 17th April, 1979 whereby the Defendants were ordered to lead their evidence first.

A preliminary objection was raised by the learned Counsel for the Respondents that the Petitioner could not challenge two orders in one revision petition. He relied on Ashok Kumar v. Faqir Chand etc. 1973 RLR 106 in support of this contention. He further submitted that the revision petition against the order dated 17th April, 1979 was filed beyond time because it was filed much beyond 90 days of the passing of the order dated 17th April, 1979 and furthermore, the Petitioner having failed to file a certified copy of the order dated 17th April, 1979 this revision petition against the order dated 17th April, 1979 is not maintainable. He relied on Shri Jagdish Parsad Gupta v. Shri Surinder Kumar etc. 1979 (1) RLR 775, Nand Ram v. Karnail Singh and Ors. AIR 1979 P&H 100 and Sant Lal v. Krishan Lal 1975 RLR 468 in support of this contention. Learned Counsel submitted that the amendment to the original revision petition was allowed by the Court without notice to the Respondent and, therefore, the Respondent could not raise objections regarding maintainability earlier and the same being pure question of law, the petition should be dismissed on this ground alone.

Learned Counsel for the Petitioner did not deny that the certified copy was not filed and also that the challenge to the order dated 17th April, 1979 was made beyond the period of limitation, however he contended that the Court has sou moto power to revise any order of the trial Court if the record of the case is before the Court and if it is found that the order is illegal and unjust. Learned Counsel referred to a large number of authorities in support of this contention.

In my view, it is not necessary for me to go into the question whether this Court has power to suo moto set aside an order of the trial court if it is found that the order was wrong, illegal or unjust because I am of the opinion that the facts of the case are such that even if there is suo moto power, this is not such case where sou moto power should be exercised. There is no doubt that this Court has, in the authorities cited by the learned Counsel for the Respondent, held that one revision petition against two orders is not maintainable and that the time for filing a revision petition is 90 days as provided under Article 131 of the Limitation Act and the revision petition cannot be entertained unless a certified. However, even if these preliminary objections are not considered, I do not see any reason why the order dated 17th April, 1979 needs to be set aside. From the perusal of the issues I find that the onus of proof on all the issues excepting issue Nos. 3 and 6 is on the Defendants. Under order of the Code of Civil Procedure, the Plaintiff has a right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Defendant, the Plaintiff is not entitled to any part of the relief which he seeks, in which case the Defendant has the right to begin.

In the present case excepting the question whether the plaint has been properly signed and verified, the Defendant has not disputed any of the facts alleged by the Plaintiff in the plaint. This being so the Petitioner was rightly asked to lead his evidence first. I, therefore, see no ground to interfere with the order passed by the trial Court dated 17th April, 1979.

Now coming to the order of the trial Court dated 26th July, 1979. By this order, the trial Court has refused the prayer of the Petitioner to ask Defendant No. 5 to lead evidence first and also closed the evidence of the Petitioner because he failed to examine his witnesses. On the first question, in my view, the trial Court was right because Defendant No. 5 is a proforma Defendant who is supporting the Plaintiff. Now, if by order dated 17th April, 1979 Defendants 1 to 3 were ordered to lead their evidence first because none of the facts stated by the Plaintiff were denied by Defendants 1 to 3, Defendant No. 5 who was supporting the Plaintiff could not be asked to lead the evidence first. As regards the question of closing of evidence, learned Counsel for the Respondents has very fairly conceded that he has no objection if the Petitioner is allowed to lead his evidence provided only one final opportunity is given to the Petitioner to lead his evidence.

1, therefore, partly allow the revision petition, set aside the order of the trial Court dated 26th July, 1979 limited to the question of closure of evidence of the Petitioner and grant one final opportunity to the Petitioner to lead his evidence. The parties are directed to appear before the trial Court on 11th July, 1988 for further proceedings. Records of the case be sent back forthwith. No costs.