Allahabad High Court
Smt. Reeta Singh And 2 Others vs Shri Thakur Ji Mahraj Virajman Shri ... on 7 January, 2025
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:3928
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 6762 of 2024
Petitioner :- Smt. Reeta Singh And 2 Others
Respondent :- Shri Thakur Ji Mahraj Virajman Shri Ganga Mandir Alakhnath Road Bareilly And 2 Others
Counsel for Petitioner :- Bhanu Bhushan Jauhari,Rishi Bhushan Jauhari
Counsel for Respondent :- Raghvendra Pratap
Hon'ble Ajit Kumar,J.
1. Heard Mr. Bhanu Bhushan Jauhari, learned counsel appearing for the petitioners and Mr. Archit Mehrotra, learned counsel appearing for the respondents.
2. Petitioners in this petition have tried to invoke the superintending jurisdiction of this Court vested under Article 227 of the Constitution of India so as to interfere with the judgment and decree passed by the Judge, Small Cause Court dated 3rd December, 2022 in S.C.C. Case No. 80 of 20212 (Shri Thakur Ji Maharaj Virajman Shri Ganga Mandir Vs. Shri Mahendra Pratap Singh through L.R.) and also the judgment and order dated 30th April, 2024 passed by the revisional court i.e. Additional District Judge, Court No.13, Bareilly in S.C.C. Revision No. 4 of 2023 (Smt. Reeta Singh & Others Vs. Shri Thakur Ji Mahraj & Others).
3. Arguments in two fold have been advanced by the learned counsel appearing for the petitioners:
(a) the judgment and decree passed by the trial judge was virtually an ex parte decree as no opportunity was afforded to the petitioner to lead evidence even though he had been substituted after the death of his father and additional written submissions had been taken on record;
(b) there was serious contest to the title of the land-lord/respondents qua the property in question and without getting the title document duly proved, the Court proceeded to pass the decree of eviction.
4. In support of the first argument, learned counsel for the petitioners has taken the Court to the order-sheet brought on record by means of the supplementary affidavit and submits that this title document in the form of scheme of administration duly proved by the District Judge, Bareilly on 24th February, 2022 was led as evidence in the year 2022 by the respondent-landlord and further also amendment in the plaint was made vide application nos. 125-C and 126-C and affidavit was in support thereof being paper no. 126-C and yet petitioner had no opportunity to counter the same, inasmuch as no date was fixed for leading the evidence. He further submits that on the basis of old order-sheet of 31st January, 2018, the Court proceeded to hold that the file was continuing at the stage of hearing and therefore, parties were suddenly directed to file their written submissions and when the petitioner moved an application for recall of this order being paper no.131-C, it was rejected only on the ground that once the order has been reserved to be pronounced, no such recall application could have been allowed and this was how the order of eviction has been finally passed on the next date.
5. Thus, according to Mr. Johari, learned counsel appearing for the petitioner, virtually there was no proper and reasonable opportunity ever afforded to petitioner to lead evidence and to contest the plaint allegations properly after he had substituted his father.
6. In support of the second argument, learned counsel appearing for the petitioner submits that since the opportunity to lead evidence was closed wholly erroneously and there was nothing on record to rebut the document filed in the form of approval of the scheme of administration by the plaintiff and that even the plaintiff had not been able to prove the said document by making any statement on oath.
7. Per contra, it is argued by the learned counsel appearing for the respondent-landlord Mr. Archit Mehrotra that the petitioner had been afforded number of opportunities in the matter and was free to contest the amendment application to file the written submission. It is submitted that the petitioner could have questioned the order of the trial judge only on this ground that the document of title was proved subsequently and that he had no opportunity to rebut the same but no such ground was taken in revision.
8. Having considered the submissions made by the learned counsel for the respective parties and having perused the records, I first proceed to deal with the first argument advanced by the learned counsel appearing for the petitioner regarding lack of proper and reasonable opportunity of hearing in the matter by the trial judge.
9.From the perusal of the order-sheet which has been appended along with the supplementary affidavit, I find that the summons stood served upon the present petitioner and the order-sheet comes to record this fact in order dated 15th April, 2022 and the order further records that a list of document was filed by the plaintiff being paper no.123-C and also vakalatnama being paper no. 124-C. On the next date i.e. 30th April, 2022 the present petitioner did not appear and accordingly, he was afforded last opportunity fixing 6th May, 2022 to file evidence in rebuttal. The order-sheet further records that the case was posted for hearing upon paper no.117-ga which was for replication to be filed by the petitioner. On 6th May, 2022 the application was heard fixing 23rd May, 2022 for orders. This paper no. 117-ga was contested by the present petitioner by filing his objection being paper no.121-C and the Court after perusing the document being paper no.123-C which was the judgment in miscellaneous case passed by the District Judge dated 24th February, 2022 approving the scheme of administration, Court accepted the replication at a cost of Rs. 200/- fixing 10th July, 2022 for cross-examination of the plaintiff. The case was adjourned for 21st July, 2022. On 21st July, 2022 the case was further adjourned to 4th August, 2022 and on 4th August, 2022, objection was invited upon the amendment application filed in the plaint being paper no. 125-C. The petitioner filed his objection on 22nd August, 2022 and thereafter several dates were fixed upto 1st November, 2022. When finally application no. 125-C for amendment was allowed at the cost Rs. 100/-, petitioner was also afforded opportunity to file additional written statement and and also to cross-examine the plaintiff on the issue of additional evidence on 11th November, 2022. On 11th November, 2022 the petitioner seems to have changed his counsel and again for cross-examination of plaintiff, 22nd November, 2022 was fixed. On 22nd November, 2022, since the present petitioner did not appear and previously also the file was continuing on hearing, since the date of death his father is 31st January, 2018, the Court fixed 30th November, 2022 for final arguments. On 30th November, 2022 both the parties were present and in their presence, they were directed to file written submissions and file was put up on 5th December, 2022 for orders. While file was put up for orders and that miscellaneous application came to be filed by the present petitioner bearing paper no. 131-C on 3rd December, 2022 for recall of the orders dated 18th February, 2017, 6th November, 2017 and 31st January, 2017. The said application was rejected on the ground that the case was reserved for orders and the judgment was to be pronounced on 5th December, 2022.
10. From the above discussions, it clearly transpires that the petitioner had ample opportunity in the first instance to file his objection to the amended plaint and lead evidence in rebuttal to additional evidence but he had not chose to file any objection by means of the additional written statement. Still further he had been afforded opportunity to file written submissions but on second instance also he failed to file the same which he should have filed and further he failed to cross-examine the plaintiff when thrice dates were fixed.
11. It also transpires from the order-sheet that on 22nd November, 2022 the file was posted for hearing on 30th November, 2022 and it was 30th November, 2022 the date was fixed for judgment but the parties were also directed to file their written submissions. No application was filed by the petitioner for recall of these two orders and instead, he chose to file recall application in respect of an order dated 31st January, 2018 of the date when his father was alive.
12. A question arises, when the petitioner himself got substituted as defendant in the case and was permitted to file additional written submission, can his conduct in non filing the additional written submissions to the amended plaint would be condonable conduct to hold that the trial court proceeded ex parte.
13. In my considered view, once a party was afforded reasonable opportunity to file written statements and then to file written submission and also to lead evidence in rebuttal as the order-sheet disclosed but he failed to do the same, the entire case of his as against new pleadings and new documentary evidence is get rendered defenseless.
14. In such circumstances, looking to the order-sheet the argument advanced by the learned counsel for the petitioner that had no ample opportunity to contest the suit does not appeal to reason.
15. In so far as the second argument advanced by the learned counsel for the petitioner regarding title claim is concerned, as already discussed above, this document was filed as additional evidence along with the amendment in the plaint and yet the petitioner chose not to rebut the same by filing any document in rebuttal or any written statement in rebuttal to the amended pleadings.
16. In such view of the matter therefore, if the Court has relied upon the judgment/order passed by a Court of law approving the scheme of administration, such document of judgement of court of law deserved valid presumption in law.
17. Besides the above, I also find that the petitioner has failed to raise this question of title and opportunity to rebut evidence by filing documentary evidence not only at the stage of suit but in the revision itself. Entire memo of revision is silent on the point.
18. In view of the above, therefore, I do not find that the findings returned in the judgment of the eviction suit by the trial judge affirmed in the revision suffer from any perversity and I do not find any manifest error in law or on facts in the judgment and decree of the trial judge impugned in this petition.
19. This petition lacks merit and is accordingly dismissed.
Order Date :- 7.1.2025
Sushil/-
