Tara Chand and Others vs Civil Judge (JD) and Judicial Magistrate and Another

R.S. Chauhan, J.—Mr. Ajay Gupta for the Petitioners.

The Petitioners are aggrieved by the order dated 01.06.2010 passed by the Civil Judge (JD) and Judicial Magistrate, First Class, Neem-Ka-Thana, District Sikar, whereby the learned Magistrate has rejected the application filed by the Defendants-Petitioners under Order 6, Rule 16 Code of Civil Procedure.

It is the case of the Defendants-Petitioners that the Plaintiff/non-Petitioner, Jogendra had filed a civil suit for permanent injunction against the Petitioners. In the suit, he had prayed that the Defendants be restrained from creating any obstruction in the use and enjoyment of the Nohra and they may be directed not to raise construction. The Petitioners had not only filed written statement, but had also filed counter claim with the written statement. The Plaintiffs had filed reply to the counter-claim. Vide judgment and decree dated 03.09.2008, the learned trial Court had dismissed the suit, but had accepted the counter-claim of the Petitioners. Since the Plaintiff/non-Petitioner was aggrieved by the judgment and decree dated 03.09.2008, he had filed an appeal before the learned Additional District Judge No. 1, Sikar Camp, Neem-Ka-Thana. Vide judgment dated 17.10.2008, the learned Judge had accepted the appeal, and quashed and set aside the judgment and decree dated 03.09.2008, and had remanded the case back to the learned trial Court with certain directions. The learned Judge was of the opinion that since the written statement was amended by the Petitioner, the Plaintiff/non-Petitioner should have given an opportunity to lead his evidence against the said amended written statement. Moreover, the Plaintiff/non-Petitioner should have been given an opportunity to lead evidence in the counter claim. Therefore, the learned Judge directed the learned trial Court to give an opportunity to the Plaintiff/non-Petitioner to lead his evidence in the counter-claim. It is the case of the Petitioner that in the reply filed by the Plaintiff/non-Petitioner to the counter-claim, he has introduced certain new facts. Therefore, the Petitioner moved an application under Order 6, Rule 16 CPC for striking out the pleadings as contained in the reply filed by the Plaintiff/non-Petitioner. However, vide order dated 01.06.2010, the learned trial Court has dismissed the application. Hence, this petition before this Court.

The learned Counsel for the Petitioner has vehemently contended that since new facts were being introduced by the Plaintiff/non-Petitioner, the reply should not have been accepted. He has further contended that by permitting the Plaintiff/non-Petitioner to introduce new facts, the trial is being prolonged.

This Court had inquired from the learned Counsel whether the Defendant-Petitioners would have the opportunity to cross-examine the Plaintiff/non-Petitioner on the new facts pleaded by the Plaintiff in his reply or not? To this query, he has frankly conceded, and in the opinion of this Court rightly so, that such an opportunity does exist for the Defendants-Petitioners. Moreover, an opportunity to submit the rebuttal evidence is equally available to the Defendants. Therefore, even if the new facts are being introduced by the Plaintiff, in his reply to the counter claim, the Petitioner certainly would have the right to lead his rebuttal evidence before the civil Court. Therefore, the Defendant-Petitioners cannot claim to be prejudiced by the introduction of the new facts by the Plaintiff/non-Petitioner.

In this light of the matter, this petition is devoid of any merit; it is, hereby, dismissed.