Rajasthan High Court - Jodhpur
Pramod Kumar vs Devendra Kumar Singh ... on 11 May, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023/RJJD/014842] (1 of 6) [CW-15891/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15891/2022
1. Pramod Kumar S/o Shri Mahaveer Prasad, Aged About 42
Years, By Caste Rajput, Resident Of 3J/31, Jawahar
Nagar, Shri Ganganagar (Raj.).
2. Vinod Kumar S/o Shri Mahaveer Prasad, Aged About 54
Years, By Caste Rajput, Resident Of A-82, G. F., Indrapuri,
New Delhi.
3. Subodh Kumar Singh S/o Shri Shri Mahaveer Prasad,
Aged About 38 Years, By Caste Rajput, Resident Of 3J/31,
Jawahar Nagar, Shri Ganganagar (Raj.).
----Petitioners
Versus
1. Devendra Kumar Singh S/o Shri Rajendra Singh, Aged
About 48 Years, Resident Of D - 43, Gali No. 06, I.a.r.i.
Pusa Campus, Thana Indrapuri, New Delhi.
2. Raghuveer Dayal S/o Shri Sukh Ram, Aged About 50
Years, By Caste Mahajan, Resident Of 92 Shanti Kunj,
Tehsil And District Alwar (Raj.).
3. Pritam Singh S/o Shri Bachan Singh, Aged About 60
Years, By Caste Jat Sikh, Resident Of Ward No. 38, Vagish
Colony, Hanumangarh Junction, Tehsil And District
Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Suniel Purohit
For Respondent(s) : Mr. C.P. Soni
Mr. Sravan Kumar Sainee
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 11/05/2023
1. This writ petition under Article 226 & 227 of the Constitution of India has been preferred claiming the following reliefs:
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[2023/RJJD/014842] (2 of 6) [CW-15891/2022] "I. By an appropriate writ, order or direction, the impugned order dated 13.04.2022 (Annex-8) passed by the Addl. District Judge No.1, Hanumangarh in original suit no.30/2012 may kindly be declared illegal and the same may kindly be quashed and set aside and consequently, the application preferred by the petitioner may kindly be allowed as prayed for.
II. Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner.
III. Costs of the writ petition may kindly be awarded to the petitioner."
2. Brief facts of the case, as noticed by this Court are that the respondent-plaintiff preferred a civil suit for declaration and permanent injunction against the present petitioners, before the learned District Court, Hanumangarh; the written statement was filed by the defendants therein, and the issues were framed by the learned court below on 01.04.2017.
2.1 During pendency of the suit, the petitioners submitted an application for taking certain additional documents on record, which included the copy of Civil Suit No.221/2012 pending adjudication before the learned District Judge, Tees Hajari Court, Delhi; the said application was allowed by the learned trial court on 01.12.2018. The petitioners thereafter, moved an application under Order 18 Rule 17 CPC on 17.05.2019 to recall the respondent-plaintiff for cross examination regarding the documents, which were allowed to be brought on record by the (Downloaded on 15/05/2023 at 10:01:54 PM) [2023/RJJD/014842] (3 of 6) [CW-15891/2022] learned trial court vide its order dated 01.12.2018. The said application under Order 18 Rule 17 CPC however, was rejected by the learned trial court vide the impugned order dated 13.04.2022 was rejected, on the ground of the same being without any substance.
3. Mr. Suniel Purohit, learned counsel for the petitioners submits that the learned trial court has accepted the petitioner's application to bring on record the documents vide order dated 01.12.2018, whereupon he immediately moved an application under Order 18 Rule 17 CPC to cross-examine the respondent- plaintiff regarding such documents, and thus, the said application ought to have been allowed, in the best interest of justice. 3.1. He further submits that there is no delay in filing such application, which was filed to clarify the position. He also submits that as far as the protraction of the trial is concerned, the parties may be directed to appear on a particular date before the learned trial court and the learned trial court be directed to complete the cross-examination of both the parties regarding the freshly added documents permitted to be brought on record vide order dated 01.12.2018.
4. Per contra, Mr. C.P. Soni and Mr. Sravan Kumar Saini, learned counsel appearing on behalf of the respondent-plaintiff vehemently opposed the same, on count of the fact that the Order 18 Rule 17 CPC could not have been invoked by the learned trial court to fill-in the lacuna, which were created due to the inaction on the part of the petitioners.
(Downloaded on 15/05/2023 at 10:01:54 PM) [2023/RJJD/014842] (4 of 6) [CW-15891/2022] 4.1 They further submit that the documents in question have been in existence since 2012 and the petitioners should have been diligent enough to bring the same on record, at an earlier point of time.
4.2. They also submits that once the documents were taken on record on 01.12.2018, then the petitioners should have moved the application under Order 18 Rule 17 CPC, if at all they wanted to move within time, but he has consciously allowed his own examination to be over, and moved such application under Order 18 Rule 17 CPC after the necessary examination was over. Thus, as per learned counsel, the whole endeavour of the petitioners is to prolong and delay the trial of the suit in question, as observed by the learned trial court in the impugned order. 4.3 They relied upon the precedent law laid down by the Hon'ble Apex Court in Ram Rati Vs. Mange Ram (D) through LRs & Ors. in Civil Appeal No.1684 of 2016 (Arising from S.L.P. (C) No.22141 of 2013), the relevant portion of whereof is produced as hereunder:
"The said power cannot be invoked in fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. 'No prejudice is caused to either party' is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."
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[2023/RJJD/014842] (5 of 6) [CW-15891/2022]
5. This Court, after hearing learned counsel for the parties at length, is of the opinion that though the power under Order 18 Rule 17 CPC has to be exercised sparingly and not for filling-in the lacuna, but at the same time, for appropriate adjudication of the case, in the chronology of the events in the suit, invocation of such power is required to be invoked, and the learned trial court should not shirk away from doing the same.
6. The present factual matrix is such that the learned trial court, after due application of mind, has allowed certain documents to be taken on record vide order dated 01.12.2018; the said order dated 01.12.2018 is not under challenge. After the order dated 01.12.2018 has been passed by the learned trial court, it is not open for the respondents to come and claim that the documents were available since 2012 and the same could have been brought on record earlier.
7. This Court only needs to adjudicate the circumstance, post 01.12.2018, whereby such documents have been permitted to be brought on record by the learned trial court in its own wisdom. The chronology of event shows that after 2018, the application Order 18 Rule 17 CPC has been preferred on 17.05.2019, and thus, there is no question of filling of lacuna in this case, as both the parties, in the midst of the suit, have these documents, which are on record, and thus, both the parties are required to be cross-examined. As far as the protraction of the trial is concerned, the same has to be taken care of by this Court. (Downloaded on 15/05/2023 at 10:01:54 PM)
[2023/RJJD/014842] (6 of 6) [CW-15891/2022]
6. In light of the aforesaid discussion, the instant petition is allowed and while quashing and setting aside the order dated 13.04.2022 (Annexure 8) passed by the learned Additional District Judge No.1, Hanuamngarh in Original Suit No.30/2012, it is directed that the application Order 18 Rule 17 CPC be allowed, but with a condition that on the next date, both the parties shall remain present for their respective cross examinations on one particular date itself, to the convenience of the learned trial court. Such cross examination shall be completed on the same day and no further opportunity shall be granted by the learned trial court to either of the parties to make any further cross examination pertaining to the documents in question, which have been permitted to be taken on record, while passing the order dated 01.12.2018.
(DR.PUSHPENDRA SINGH BHATI), J.
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