RAJINDER TIWARI versus KEDAR NATH (DECEASED) THR. LRS. & ORS. on 28 March 2019

[2019] 5 S.C.R. 881

RAJINDER TIWARI

v.

KEDAR NATH (DECEASED) THR. LRS. & ORS.

(Civil Appeal Nos.3282-3283 of 2019)

MARCH 28, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Suit – Appellant-plaintiff filed suit for permanent injunctionagainst the respondent-defendant in relation to the suit property –Defendant’s right to file the written statement was closed – Suitdecreed – First appeal filed by the defendant – Dismissed – Secondappeal filed by the defendant – Allowed – Held: No justifiablereason to deny the defendant of his right to file the written statement– Trial in the suit was not done satisfactorily inasmuch as thedefendant was not afforded an adequate opportunity to file hiswritten statement – In the absence of any written statement, thedefendant could neither adduce proper evidence nor file anydocumentary evidence in support of his case – Rights of the partieswere, therefore, decided by the two Courts (Trial Court and FirstAppellate Court) by decreeing the suit and the High Court bydismissing the suit on the basis of insufficient evidence, which causedprejudice to both the parties – All the contesting parties to the suitmust get fair opportunity to contest the suit on merits in accordancewith law – Impugned orders set aside – Matter remitted to the TrialCourt for deciding the civil suit afresh on merits in accordancewith law.

Allowing the appeals, the Court

HELD: 1.1 The trial in the suit has not been donesatisfactorily inasmuch as the defendant was not afforded anadequate opportunity to file his written statement. In the absenceof any written statement, the defendant could neither adduceproper evidence nor file any documentary evidence in support ofhis case. The rights of the parties were, therefore, decided bythe two Courts (Trial Court and First Appellate Court) by

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882SUPREME COURT REPORTS

Adecreeing the suit and the High Court by dismissing the suit onthe basis of insufficient evidence. It caused prejudice to both theparties. No justifiable reason is found to deny the defendant ofhis right to file the written statement. He was entitled to file thewritten statement and to adduce oral and documentary evidencefor contesting the suit on merits. All the contesting parties to theBsuit must get fair opportunity to contest the suit on merits inaccordance with law. Matter is remitted to the Trial Court fordeciding the civil suit afresh on merits in accordance with law.The respondents herein (legal representatives of originaldefendant) are accordingly granted liberty to file their writtenCstatement within one month from the date of their appearance inthe suit. The Trial Court will thereafter frame issues arising inthe suit on the basis of the pleadings of the parties and then allowthe parties to adduce their evidence in addition to the evidencealready adduced. The parties will also be allowed to file additionaldocuments, if they so wish. [Paras 14-20][884-E-H]D

1.2 The Trial Court will decide the suit on thebasis of the pleadings and the evidence adduced by the partiesuninfluenced by any judgment passed by the Courts in this Caseon the earlier occasion. No opinion expressed any on the meritsof the issue while having formed an opinion to remand the caseEto the Trial Court. The trial be completed within one year.The impugned orders are set aside and the suit is restored to itsoriginal file for being tried on merits. [Paras 21-24][885-C-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3282-3283 of 2019.F

From the Judgment and Order dated 03.11.2016 of the High Courtof Delhi at New Delhi in RSA No.188 of 2010 and Order dated 26.04.2017in C.M. Application No. 46865 of 2016 in RSA No. 188 of 2010.

R. K. Kapoor, Ms. Kheyali, Rajat Kapoor, Anis Ahmed Khan,GAdvs. for the Appellant.

Ajay Kumar, Manmohan Jha, Sandeep Garausa, Vipin KumarJai, Advs. for the Respondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are directed against the final judgment and orderdated 03.11.2016 passed by the High Court of Delhi at New Delhi inR.S.A. No.188 of 2010 whereby the High Court allowed the RSA filedby the respondents herein and order dated 26.04.2017 in CM(Application)No.46865 of 2016 by which the High Court dismissed the applicationfor re-hearing of the second appeal filed by the appellant herein.

3. A few facts need mention hereinbelow for the disposal of theappeals, which involve a short point.

4. The appellant is the plaintiff and the original respondent (nowrepresented by his legal representatives) is the defendant in the civil suitout of which these appeals arise.

5. The appellant(plaintiff) filed Civil Suit No. 147 of 2007 againstthe original respondent(defendant) in the Court of Senior Civil Judge-cum-Rent Controller(North East Dist.), Karkardooma Courts, Delhi forpermanent injunction in relation to the suit property.

6. It is not in dispute that the defendant’s right to file the writtenstatement was closed by the Senior Civil Judge with the result, thedefendant could not file his written statement and nor could file anydocumentary evidence.

7. The plaintiff then adduced his evidence. The defendant,however, could only cross-examine the plaintiff’s witnesses without hisdefence for want of written statement.

8. By judgment/decree dated 01.02.2010, the Senior Civil Judgedecreed the plaintiff’s suit by passing a decree for permanent injunctionas prayed by him. The defendant felt aggrieved and filed first appealbefore the Additional District Judge.

9. By judgment dated 26.07.2010, the first Appellate Courtdismissed the appeal and upheld the judgment and decree passed by theSenior Civil Judge.

10. The defendant felt aggrieved and filed second appeal in theHigh Court of Delhi. By order dated 03.11.2016, the High Court allowed A

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Athe second appeal, set aside the judgment of the first Appellate Courtand dismissed the plaintiff’s (appellant’s herein) suit. Thereafter theplaintiff filed application for re-hearing of the second appeal but thesame was dismissed by order dated 26.04.2017. Against both the orders,the appellant(plaintiff) has filed the present appeals by way of specialleave in this Court.B

11. So, the short question, which arises for consideration in theseappeals, is whether the High Court was justified in allowing the defendant’ssecond appeal and was, therefore, justified in dismissing the plaintiff’s(appellant’s herein) suit.

12. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow these appeals andwhile setting aside the impugned orders, remand the case to the TrialCourt (Senior Civil Judge) for trying the civil suit afresh on merits inaccordance with law.

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D13. In our considered opinion, the need to remand the case to theSenior Civil Judge for trying the civil suit afresh on merits has occasionedfor more than one reason.

14. First, we find that the trial in the suit has not been donesatisfactorily inasmuch as the defendant was not afforded an adequateEopportunity to file his written statement.

15. Second, in the absence of any written statement, the defendantcould neither adduce proper evidence nor file any documentary evidencein support of his case.

16. Third, the rights of the parties were, therefore, decided by theFtwo Courts (Trial Court and First Appellate Court) by decreeing the suitand the High Court by dismissing the suit on the basis of insufficientevidence. In our view, it caused prejudice to both the parties.

17. Fourth, we do not find any justifiable reason to deny thedefendant of his right to file the written statement. He was entitled toGfile the written statement and to adduce oral and documentary evidencefor contesting the suit on merits.

18. It is a settled law that all the contesting parties to the suit mustget fair opportunity to contest the suit on merits in accordance with law.A decision rendered by the Courts in an unsatisfactory conducting of the H

trial of the suit is not legally sustainable. It is regardless of the fact thatin whose favour the decision in the trial may go.

19. It is for these reasons, we are of the view that these appealsdeserve to be allowed and matter is remitted to the Trial Court for decidingthe civil suit afresh on merits in accordance with law.

20. The respondents herein (legal representatives of originaldefendant) are accordingly granted liberty to file their written statementwithin one month from the date of their appearance in the suit. The TrialCourt will thereafter frame issues arising in the suit on the basis of thepleadings of the parties and then allow the parties to adduce their evidencein addition to the evidence already adduced. The parties will also beallowed to file additional documents, if they so wish.

21. The Trial Court will decide the suit on the basis of the pleadingsand the evidence adduced by the parties uninfluenced by any judgmentpassed by the Courts in this Case on the earlier occasion.

22. We, however, make it clear that we have not expressed anyopinion on the merits of the issue while having formed an opinion toremand the case to the Trial Court.

23. Let the trial be completed within one year. Parties to appearbefore the Senior Civil Judge (North East District), Karkardooma Courts,Delhi on 02.04.2019.

24. The appeals thus succeed and are accordingly allowed. Theimpugned orders are set aside and the suit is restored to its original filefor being tried on merits as indicated above.

Divya Pandey

Appeals allowed.

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