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DEEWAN DHOBI v HARISH CHANDRA BAVAN - CSA Case No. 641 of 2003 [2006] RD-RJ 3142 (7 December 2006)





S.B. Civil Second Appeal No.641/2003

Deewan Dhobi S/o Shri Mangi Lal ...defendant-appellant


Harish Chandra Bhavan S/o Shri Durga Lal ...plaintiff-respondent

Date of Order ::: 07.12.2006


Hon'ble Mr. Justice Narendra Kumar Jain

Shri M.M. Ranjan, Counsel for defendant-appellant

Shri Sanjay Joshi, Advocate, for

Shri N.K. Joshi, Counsel for plaintiff-respondent ####

By the Court:-

With the consent of both the parties the second appeal is being disposed of at admission stage itself.

Heard learned counsel for both the parties.

Plaintiff-respondent filed a suit for eviction in respect of the rented property in the lower court, which was decreed by the lower court and the judgment and decree passed by the lower court has been affirmed by the first appellate court also.

The learned counsel for the appellant contended that the learned first appellate court has committed a serious illegality in not considering the interlocutory orders passed by the lower court, whereby the evidence of the defendant was closed and another order whereby the application filed by the defendant under Order 6 Rule 17 of the CPC to amend written statement was dismissed. He submitted that the order rejecting his application under Order 6 Rule 17 of the CPC was challenged by him before this court in

S.B. Civil Revision Petition No.256/2002 wherein this court while dismissing the revision petition observed that the impugned order is interlocutory in nature, therefore, it is always subject to correction in regular appeal, if necessity arises. But the learned first appellate court, vide its impugned judgment dated 29.8.2003 did not consider both the interlocutory orders by observing that the same are in the nature of final order and no revision was preferred against those orders, therefore, he cannot see the legality of both the orders in regular First

Appeal. He, therefore, contended that the impugned judgment and decree passed by both the courts below are liable to be set aside.

The learned counsel for the respondent contended that proper opportunity was given to the defendant to lead his evidence. He further contended that even after closure of his evidence, he was again given an opportunity to lead evidence, but the defendant did not adduce any evidence resulting in again closure of his evidence. He further contended that the learned lower court was justified in rejecting the application filed by the defendant under 18th

Order 6 Rule 17 of the CPC vide order dated

December, 2001.

Following substantial question of law is involved in this second appeal:-

"Whether the defendant- appellant was entitled to challenge the interlocutory orders in regular appeal and it was duty of the appellate court to consider the legality proprietary and otherwise correctness of the interlocutory orders dated 19.4.2001, 8.5.2001 and 18.12.2001."

Learned counsel for the plaintiff-respondent, during the course of arguments, agreed and contended that instead of admitting the present second appeal, the matter may be remitted back to the lower court with a direction to allow the defendant to lead his evidence in the matter within the time fixed by this court and decide the suit as soon as possible.

Learned counsel for the defendant-appellant has also contended that the matter may be remitted back to the lower court itself with the aforesaid direction.

In view of the statement/agreement in between both the parties, I do not intend to decide the substantial question of law involved in the present second appeal, as reproduced above, and direct the lower court to afford an opportunity to the defendant to lead his evidence and to decide the suit afresh as soon as possible.

Consequently, the second appeal is allowed. The impugned judgment and decree dated 29th of August, 2003 passed by Additional District Judge No.9, Jaipur City,

Jaipur, as well as the judgment and decree dated 17.5.2002 passed by the Additional Civil Judge (Junior

Division) No.5, Jaipur City, Jaipur in Civil Suit

No.62/1996 (129/1991), are set aside and the case is remitted back to the court of Additional Civil Judge

(Junior Division) No.5, Jaipur City, Jaipur, with a direction to allow the defendant to lead the evidence in the matter. The learned lower court will not grant more than two opportunities of 15 days each to the defendant to lead evidence in the case. Thereafter the suit will be disposed of afresh within a period of two months after completion/closing of the evidence of the defendant.

Both the parties are directed to appear before the Court of Additional Civil Judge (Junior Division)

No.5, Jaipur City, Jaipur, on 9th of January, 2007.

The registry is directed to send the record of both the courts below to the lower court.

There shall be no order as to costs.

(Narendra Kumar Jain) J. //Jaiman//


Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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