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HATTI SINGH & ANR versus RAKESH KUMAR & ORS

High Court of Punjab and Haryana, Chandigarh

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Hatti Singh & Anr v. Rakesh Kumar & Ors - CR-187-2005 [2006] RD-P&H 8268 (10 October 2006)

C.R.No.187 of 2005 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Civil Revision No.187 of 2005

Date of Decision: 20 - 9 - 2006

Hatti Singh and another .......Petitioners v.

Rakesh Kumar and others ........Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Mahavir Sandhu, Advocate

for the petitioners.

Mr.Rajesh Garg, Advocate

for respondent Nos.1 and 3.

***

P.S.PATWALIA, J.

The present revision petition has been filed challenging order dated 10.12.2004 passed by the Civil Judge (Sr.Division), Panchkula dismissing whereby an application filed by the petitioners, defendants 3 and 4 in the civil suit, praying that respondent No.2 -defendant No.2 in the suit, be not permitted to lead evidence after the evidence of petitioners, defendants 3 and 4, had been closed.

Suit was filed by plaintiff Rakesh Kumar wherein he arrayed the present petitioners as defendants 3 and 4. One Dinesh Kumar was arrayed as defendant No.1 and Arvind Kumar as defendant No.2. The suit was for possession of the house by way of specific performance of a contract for sale dated 22.9.1993 executed by defendant No.1 Dinesh Kumar through his general power of attorney defendant No.2 Arvind Kumar in favour of the plaintiff.

C.R.No.187 of 2005 [2]

In the suit defendant No.1 remained ex parte. Defendant No.2 supported the case of the plaintiff. It was argued before me that he has filed a written statement admitting the plaintiff's claim. The suit was only contested by defendants 3 and 4, petitioners in this revision petition. In the suit, the plaintiff closed his evidence on 27.2.1998. Defendants 1 and 2 did not lead any evidence.

Thereafter defendants 3 and 4, petitioners in this revision petition, were called upon to lead their evidence. They also closed their evidence on 7.5.2002.

It is thereafter that defendant No.2 appeared to lead his evidence. In his examination-in-chief he totally supported the case of the plaintiff. It is at the stage of cross examination that defendants 3 and 4 filed an application stating that since defendant No.2 was a defendant and supporting the case of the plaintiff, he should not be allowed to lead evidence after defendants 3 and 4 had closed their evidence. It is this application which was dismissed, against which the present revision petition has been filed. Even while dismissing the application the trial Court has observed that no doubt as per the law cited by counsel for defendants 3 and 4, a defendant who supports the case of the plaintiff is required to lead evidence prior to the evidence of the contesting defendents but since in the present case defendant No.2 had not been particularly asked to lead evidence before defendants 3 and 4, he could not be denied an opportunity to appear as his own witness.

I have heard learned counsel for the parties and perused the paperbook.

At the time of arguments, learned counsel for the petitioners placed reliance on a Division Bench of this Court in Harminder Pal and another v.

Pritam Dass and others reported as 1990 PLJ 567. He argued that in the aforesaid judgment a specific question was referred for adjudication to a Division Bench as to whether a defendant who has admitted the case of the plaintiff is entitled to lead evidence in support of the claim made by the plaintiff after the C.R.No.187 of 2005 [3]

contesting defendants had closed their evidence. A reading of the facts of that case would also show that therein the defendant who had admitted the case of the plaintiff had filed an application to lead his evidence after the contesting defendants had concluded their evidence. It is against the order rejecting the application that a revision was filed in this Court which was referred to the Division Bench. After going through the various judgments cited the Division Bench has concluded as hereunder:-

"6. After hearing the learned counsel for the parties and going through the case law cited at the bar we are of the considered view that the party who admits or supports the claim of the plaintiff, could be allowed to lead evidence in the support of the plaintiff's claim before the contesting defendants is called upon to lead evidence.

Once the contesting defendant is called upon to lead evidence and closes the same, then the consenting defendant cannot be allowed to lead evidence in support of plaintiff's claim. In other words, once a party admits the plaintiff's claim, it steps into his shoes and will lead evidence, if any, alongwith the plaintiff. Once the contesting defendants are allowed to lead evidence then at that stage the consenting defendant could not be allowed to fill up the lacuna of the plaintiff's case. In Chhailu Ram's case (supra) the consenting defendants were allowed to lead evidence after the plaintiff had closed his evidence. At that stage, an objection was taken on behalf of the contesting defendants that the said defendant was not entitled to lead evidence. It was in that situation that it was held by this Court that the said defendant should be given an opportunity to lead his evidence before the contesting defendants could lead their evidence. In Subhash Chander's case (supra) the consenting defendant wanted to be transposed as plaintiff and then lead evidence C.R.No.187 of 2005 [4]

in support of the plaintiff's claim which application was dismissed by the trial Court. It was, therefore, held that the Court had every right to permit such defendant though by order to examine any witness at any stage. In Nanak Chand's case (supra) it was observed that "I have no doubt that when an issue of fact arises between the plaintiff and one of the defendants the other defendants who support the plaintiff's case cannot be prevented from examining evidence on that issue." It is, therefore, evident that in all these cases the consenting defendant was allowed to lead evidence in support of the plaintiff's case at the stage when the plaintiff was leading his evidence. In none of the cases referred to above, it has been held that the consenting defendant is entitled to lead evidence in support of the plaintiff's claim even after the contesting defendants have closed their evidence."

To the same effect is the view taken by a learned Single Bench of this Court in Sant Singh v. Mohan Singh, 1999(3) CCC 419 . In Gottumukkala Venkata Krishna Raju v. Bhupathiaju Jayalakshmi, 1988 CCC 192 the Andhra Pradesh High Court has observed as hereunder:-

"3. But it is argued by Sri T. Veerabhadrayya, learned counsel for the petitioners in this civil revision petition, that his clients were the victims of the lower Court's failure to warn them of their right to lead evidence. He said that the court should have invited them to lead their evidence after the plaintiffs evidence was over. In as much as the Court below had failed to perform that duty he argued that the supporting defendants should now be allowed to adduce evidence even after the closure of the evidence of the contesting defendants. I cannot agree with this contention. In my opinion the court owes no such duty to the supporting defendants. ...." C.R.No.187 of 2005 [5]

In view of the judgment of the Division Bench in Harminder Pal's case (supra) I am of the opinion that once the contesting defendants have closed their evidence, a defendant supporting the claim of the plaintiff cannot be allowed to lead his evidence. Thus in the present case defendant No.2 in the suit who is supporting the claim of the plaintiff cannot be allowed to lead evidence after the contesting defendants have concluded their evidence.

Before concluding I may notice that learned counsel for the petitioners has drawn my attention to a Single Bench judgment of this Court in M/s Punjab Steel Corporation, Batala v. M.S.T.C. Limited, Calcutta, 2002(2) PLR 99. I have gone through the facts of that case. The controversy in that case was relating to the fact as to whether the plaintiff therein could be examined as a witness in rebuttal with a view to rebut the evidence led by the defendants. That is not the controversy in this revision petition. I am of the opinion that the said judgment would have no applicability to the facts of the present case.

For the aforementioned reasons this revision petition is allowed and order dated 10.12.2004 passed by the trial Court is set aside. The examination-in- chief of defendant No.2 would not be read in evidence.

( P.S.PATWALIA )

September 20th, 2006. JUDGE

RC


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