D. Lonic India Pvt. Ltd. vs Bhardwaj Engineering
1997 Latest Caselaw 998 Del

JUDGMENT

Manmohan Sarin, J.

(1) Petitioner, who is defendant in the suit, has filed this revision petition, assailing the order dated 15.7.1995. The learned Civil Judge by the said order dated 15.7.1997 (hereinafter referred to as the 'impugned order') rejected petitioner's application under Order Xiii Rule 2 Sub-rule (1) of the Code of Civil Procedure, for being permitted to place on record certain letters. By the impugned order another application filed by the petitioner under Order Xiv Rule 4 Sub-rule (2) was allowed and an issue was framed as under : "WHETHER the plaintiff firm is a registered partnership firm and the suit ha snot been instituted by a registered and fully authorised partner?"

The issue has been couched in terms, putting the onus of proof on the defendant petitioner.

(2) The essential facts for disposal of this revision petition may be noticed in brief.

(I)Petitioner is defendant in suit bearing No. 559/88, filed by the respondent on the basis of a hire contract for shuttering and other material. On 28.2.1990, after completion of pleadings, the Trial Court framed the following issues :

1. Whether the suit is bad for misjoinder of defendant No. 2 ? 2. Whether the plaintiff is entitled for a decree in the sum of Rs. 2,120.00 alongwith costs, etc., as per the prayer clause ? 3. Relief.

(II)The first date for plaintiff's evidence was on 6.3.1990 and the plaintiff concluded its evidence on 29.10.1992. The case was thereafter, fixed for defendants evidence on2.12.1992.Petitioner moved the application under Order Xiv Rule 5 and Order Xiii Rule 2, Cpc, on 21.1.1993.

(III)During the proceedings in the suit petitioner had also been proceeded ex-parte, which was set aside, subject to costs, in 1994.

(3) Notice in this revision petition was issued On 27.11.1995, confined to the application under Order Xiv Rule 5, CPC. Learned Counsel for the petitioner has urged before me that the petitioner/defendant had duly taken the objection in the written statement, contending that the respondent firm was not a registered partnership firm and the suit had not been instituted by a registered and duly authorised partner. However, the Court did not frame any issue on this plea, as noticed above in para 2, when the issues were framed on 28.2.1990. Vide the impugned order the Court framed the issue but put the onus of proving the issue on the petitioner/defendant. '

(4) It cannot be the obligation of the petitioner/defendant to prove the negative that the petitioner firm is not a registered firm and the suit has not been instituted by a registered and duly authorised partner. Evidence of the respondent/plaintiff has been recorded and it appears from the statement that Form 'A' has been tendered as Exhibit Public Witness Public Witness 1/1. Nevertheless, the facts remains that the onus of proving the said issue should have been cast on the respondent/plaintiff. The impugned order is vitiated by material irregularity and the said issue is re-cast as under: "WHETHER he plaintiff firm is a registered partnership firm and the suit has been instituted by a duly authorised partner?"

The mere delay in moving an application for framing of an issue, which has been omitted, cannot come in the way since framing of the issue as per pleadings is the duty of the Court.

(5) Coming to the second application moved by the petitioner under Order Xiii Rule2 of the Code of Civil Procedure, the contention of the petitioner is that the Trial Court has declined the same only on the ground of delay and shut out the evidence despite petitioner's assertion that on account of bona fide reasons and sufficient cause,the same could not be produced, I am not persuaded to accept the submission of learned Counsel for the petitioner for the reasons given, viz. that petitioner bona fide believed that the documents had been filed and only at the time of change of Counsel when the Court file was inspected the documents were not found there and on checking of the record it was found that the said documents had been mistakenly placed in the folder of the file maintained by the petitioners in respect of an associate concern of the respondents, viz. Bhardwaj & Co. The ingredients of Order Xiii Rule 2 of the Code of Civil Procedure would not be satisfied, inasmuch as, petitioners, on their own admission, were in possession of the said documents.

(6) In any case, in the instant case, notice has been issued by this Court on 27.11.1995, confined to the application under Order Xiv Rule 5 of the Code of Civil Procedure, which order had not been assailed and has become final. Accordingly, petitioner's application under Order Xiii Rule 2, Cpc, cannot be considered.

(7) Consequently, the revision petition is dismissed as regards the application underOrderXIIIRule2 of the Code of Civil Procedure and partly allowed in respect of the application under Order Xiv Rule 5 of the Code of Civil Procedure and the issue, as framed by the Trial Court, has been re-cast. The Trial Court will now, if required, give to the petitioner an opportunity to lead evidence on the issue, as recast, and thereafter, proceed to expeditiously dispose of the suit.

(8) Trial Court record be returned forthwith.