Madhya Pradesh High Court
Mohan Singh Rathore vs Dhannjay Rao Jadhav on 30 August, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
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THE HIGH COURT OF MADHYA PRADESH
M.P. No.4448/2019
( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.)
Gwalior, Dated : 30.08.2019
Shri K.S. Tomar, senior Advocate with Shri Raju Sharma, counsel
for the petitioner.
Shri Harish Dixit, counsel for the respondent/caveator.
The present petition has been filed challenging the order dated 5.8.2019 passed in Civil Suit No. 17-A/2010 whereby the application under Order 6 Rule 17 of CPC seeking amendment in the written statement has been rejected. Another application filed under order 8 Rule 1 A to the effect that the documents regarding opening of new hotel by the plaintiffs was required to be brought on record to demonstrate that the bonafide need mentioned by the plaintiffs regarding the property in civil suit has already been over after opening of a three star hotel and the bonafide requirement has come to an end.
It is submitted that the petitioner further wants to cross-examine the plaintiffs to the aforesaid effect and he has filed an application under Order 18 Rule 17 read with Section 151 of CPC before the learned trial Court stating therein that the amendment in the written statement has been incorporated regarding opening of a new three star hotel, thus, the bondafide requirement of the plaintiffs has come to an end. He wants to re-examine the plaintiffs thus he has prayed for calling of the plaintiffs in the witness box for further cross-examination. It is alleged that the learned trial Court has not considered the aforesaid application properly and has rejected the same for re-examination of the plaintiffs. He has drawn attention of this Court to the amendment made in the written statement regarding opening of a three star facility hotel. Further drawn 2 THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) attention of this Court to the application under Order 18 Rule 17 read with section 151 of CPC and reply to the application. He has relied upon the judgment passed in the case of Devendra Kumar Jain Vs. Manoharlal s/o Indermalji Jain reported in 2007 (4) MPLJ 101 and has argued that the onus of proof was on the plaintiffs to establish their bonafide requirements. Once the three star hotel is being opened by the plaintiffs then their bonafide requirement has automatically come to an end. He has further relied upon the judgment passed in the case of Jaiprakash Gupta -vs- Riyaz Ahmed & Anr., reported in (2009) 10 SCC 197 to establish his arguments regarding impact of subsequent development which has taken place after filing of the civil suit. It is alleged that as per Section 12 of the Accommodation and Control Act the onus of proving the bonafide requirement is heavily on the plaintiffs and once they have already established the three star hotel, then the onus automatically shifts upon the plaintiffs to demonstrate that still their bonafide requirement survives. He has further relied upon the provisions of Section 101 of the Evidence Act which deals with shifting of the onus of proof. Thus, in the subsequent development he wants to call the plaintiffs for further cross-examination on the aforesaid aspect. It is submitted that the learned trial Court has committed a grave error in not considering the aforesaid aspects and has out rightly rejected the application.
Per contra, the counsel appearing for the respondent has supported the order passed by the learned trial Court and has submitted that in terms of the section 103 of the Evidence Act, heavy burden lies on the 3 THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) petitioner to prove the fact that by subsequent event the bonafide requirement has come an end. It is submitted that the owner of the property is having a bonafide requirement of the disputed property and during the pendency of the civil suit as an alternative arrangement he has opened the three star hotel at some other place, but the same will not affect the present litigation. He has submitted that the plaintiffs' evidence is already over and a detailed cross-examination was done by the petitioner's counsel. He has relied upon the judgment passed by the Hon'ble Supreme Court in the cases of Nidhi vs. Ram Kripal Sharma (dead) Through Legal Representatives, reported in (2017) 5 SCC 640 and Mehmooda Gulshan vs. Javaid Hussain Mungloo, reported in (2017) 5 SCC 683 and has argued that the aforesaid application is being filed just to unnecessary delay the proceedings of the learned trial Court.
It is further contended that the plaintiffs have filed the civil suit claiming their bonafide requirement. The averments regarding opening of a new hotel and the end of the bonafide requirement is being raised by the counsel for the defendant, therefore, heavy burden lies upon him to prove his averments. The defendant wants to prove his case by shifting the burden upon plaintiffs which in the facts and circumstances of the case is not permissible. The plaintiffs' evidence has already been closed by the learned trial court and the defendant's evidence has started therefore, at this stage the learned trial Court was justified in not allowing the application under Order 18 Rule 17 CPC and calling the plaintiffs for their re-examination. Thus, he has prayed for dismissal of the writ petition.
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THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) Heard the learned counsel for the parties and perused the record. The civil suit was filed by the plaintiffs for eviction from the suit property and a detailed written statement was filed by the petitioner/ defendant. During the pendency of the civil suit, an application has been filed under Order 6 Rule 17 to the effect that the plaintiffs have opened a three star facility hotel on another property belonging to their ownership. The said application was allowed by the learned trial Court and the aforesaid amendment was incorporated in the written statement. Another application was filed by the plaintiffs for seeking amendment in the plaint that was allowed by the learned trial Court. Thereafter, an application for under Order 18 Rule 17 read with Section 151 was filed by the petitioner before the trial Court stating that the amendment was permitted to be done in the written statement by the trial Court, therefore, he wants to further cross-examine the plaintiffs on the aforesaid aspect. Therefore, he has prayed for calling of the plaintiffs for their cross-examination again. A detailed reply to the application was filed by the plaintiffs saying that the heavy burden of proof is on the defendant to prove his averment in the case. He cannot take advantage of the plaint averments and call him for further cross-examination to prove his stand. The learned trial Court has considered the aforesaid aspects and has finally rejected the application on 5.8.2019 observing that the heavy burden lies upon the defendant to prove his averments raised in the written statement and subsequent application filed under Order 6 Rule 17 CPC. It was further observed that the matter is more than 10 years old and the plaintiffs' evidence has been closed. Therefore, 5 THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) at this stage he cannot permit the plaintiffs to be recalled in evidence for their cross examination. Accordingly, the application was rejected with the further direction to the defendant to keep his witness present before the Court. The provisions of Order 18 Rule 17 are required to be seen:-
"ORDER 18. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES Rule 1.Right to begin. - The plaintiff has the 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".
"17. Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."
The Hon'ble High Court in the case of Ram Vishal @ Vishali Kachhawaha vs. Dwarka Prasad Jaiswal, reported in 2006 AIR (MP) 68 has considered the provisions of Order 18 Rule 17 regarding recalling of witness and has held as under:-
"9. The purpose of amendment of pleadings is to place material facts before the Court which are necessary, just and proper for deciding the real question in controversy between the parties. If some pleading has been amended after closure of evidence, the party in whose favour such an order has been passed would be entitled for reasonable opportunity to prove the contention raised in the pleading, otherwise the entire purpose of amendment of pleading shall frustrate. Without any proof there is no meaning of amendment of pleading or the pleading though on record, but in absence of proof no finding can be recorded by the Court. Particularly, when the contention has been denied/contradicted by the other party, in these circumstances in the interest of justice the Court has to allow an opportunity in this regard to prove amended pleadings. Simultaneously the Court should also see that the aforesaid opportunity is not misutilised by any of the party and in the garb of such opportunity the case is not reopened de novo. In each and every case it is to be seen whether such an opportunity is necessary and to what extent. If the contention can be proved by recalling all the witnesses and/or by further examination of witnesses the Courts are empowered to grant such opportunity. The Courts while granting such an opportunity shall be limited to the extent of newly amended pleadings."
The Hon'ble Supreme Court in the case of K.K. Velusamy vs N. 6 THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) Palanisamy, reported in (2011) 11 SCC 275 has observed as under:-
"9. There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications."
From the aforesaid law laid down by the Hon'ble High court as well as Supreme Court, it is apparently clear that the recall of the witness is permissible owing to subsequent development in the matter. The learned trial Court should have examined the fact minutely and should observe its satisfaction regarding interest of justice and prevent abuse of process of law, whether in the given facts and circumstances of the case it was necessary to re-open the evidence and if so to what extent it should be permitted. In the present case the plaintiffs' evidence is over and the fact regarding opening of the new hotel was permitted to be incorporated by way of application under Order 6 Rule 17 in the written statement. The aforesaid amendment was incorporated on 5.3.2019 in the written statement by the defendant. Thereafter, an application under order 18 Rule 17 has been filed for recalling of the plaintiffss witness prior to starting of defendant's evidence. It was alleged that the civil suit was filed by the plaintiffs for eviction showing their bonafide requirement for the property in question and during pendency of the 7 THE HIGH COURT OF MADHYA PRADESH M.P. No.4448/2019 ( Mohan Singh Rathore vs. Dhannjay Rao Jadhav & Ors.) civil suit on another property the plaintiffs have opened a three star hotel. Thus, the bonafide requirement as shown by the plaintiffs is not available any more to the plaintiffs. The aforesaid amendment was permitted by the trial Court to be incorporated in the written statement to which the defendant wants to cross-examine the plaintiffs further on this issue. Thus, this being a subsequent development during the pendency of the civil suit, therefore, in the considered opinion of this Court the learned trial Court was not justified in rejecting the application filed under Order 18 Rule 17 of CPC. The learned trial Court should have recalled the plaintiff for his cross-examination on the issue of subsequent development in the interest of justice. Accordingly, the order impugned is set aside. The application filed under Order 18 Rule 17 is hereby allowed.
No order as to cost.
(VISHAL MISHRA) JUDGE van VANDANA VERMA 2019.09.18 10:50:49 +05'00'