S.Gurdeep Singh Dang vs Sh.Raj Kumar Kohli & Ors.
2011 Latest Caselaw 4947 Del

i.R-2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       RFA 705/1999

%                                               3rd October, 2011

S.GURDEEP SINGH DANG                            ..... Appellant
                   Through:         Mr.Y.P.Ahuja, Adv.

                  versus


SH.RAJ KUMAR KOHLI & ORS.                       ..... Respondents

                     Through:       None


CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. This case is on the regular board of this Court since

4.7.2011. Today it is effective item no.2. No one appears for the

respondents although it is 3.15 P.M. I have therefore heard the

counsel for the appellant and am proceeding to dispose of the appeal.

2. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure (CPC) is to the impugned

judgment of the Trial Court dated 7.7.1999, and by which judgment the

Trial Court dismissed the suit filed by the appellant for cancellation of

the sale deed dated 9.1.1997, and which the plaintiff alleged was

signed under force and coercion.

3. A reference to the Trial Court record shows that issues in

this case were framed on 29.7.1998 and which read as under:-

"1. Whether sale deed registered with Sub- Registrar by Registration No.296 Addl. Book No.1 Volume No.8651 at Page 125 to 131 and other sale deed registration No.297 Addl. Book No.1 Volume No.8651 at Page Nos. 132 to 139 were executed by the plaintiff in favour of defendants? OPP.

2. Whether the plaintiff was not competent to execute the sale deeds? OPD.

3. Whether the sale deeds above named are liable to be set aside and declared void? OPD.

4. Whether the plaintiff is in possession of the suit property? OPP.

5. Whether the plaintiff has no locus standi to file the present suit? OPD.

6. Whether the suit is bad for mis-joinder of defendant no.1 and non-joinder of Darshan Gandhi? OPD.

7. Whether the plaintiff has suppressed the true and material facts? OPD.

8. Relief."

4. After framing of issues, the case was fixed for plaintiff's

evidence. The evidence of the plaintiff/appellant commenced on

7.7.1999 and on which date during the examination-in-chief of the

appellant/plaintiff, and before even completion of the evidence, the

Court put various questions as Court questions and on the basis of

answers given the Trial Court thereafter straightaway proceeded to

dismiss the suit.

5. Learned counsel for the appellant/plaintiff argues that if

any answers are given to the Court questions, and if those answers go

against the plaintiff/appellant, then no doubt, such answers can be

used against the appellant/plaintiff, however, they can only be used at

the stage of the final arguments in the suit after the appellant/plaintiff

was allowed to complete his entire evidence. It is also argued that it

was necessary for the defendants to lead evidence in rebuttal before

the evidence of the plaintiff could be disbelieved. It is argued that the

Trial court did not allow the case to come to such a stage but

straightaway on the very first date of the appellant's/plaintiff's

evidence, dismissed the suit by holding that the appellant/plaintiff did

not come to the Court with clean hands.

6. In my opinion, the arguments as raised by the learned

counsel for the appellant/plaintiff are well-founded and the appeal is

liable to succeed. As per the established procedure contained in CPC,

a suit in which there are disputed questions of fact can only be decided

after both the parties are allowed to lead their complete evidence, i.e.

at the stage of final arguments. Even assuming some answers are

given to Court questions which go against the appellant/plaintiff cannot

mean that the appellant/plaintiff cannot be allowed to lead further

evidence. Also, whether the appellant/plaintiff succeeds or not, is an

issue which is decided also on the basis of whether the defendants

choose to lead rebuttal evidence or not, because, if rebuttal evidence

is not led, ordinarily appellant's/plaintiff's evidence ought to be

believed.

7. I may also note that in terms of Order 14 Rule 2 CPC, Court

is bound to pronounce judgment on all issues and which stage will only

come after evidence of the plaintiff is completed and the defendants

are allowed to lead rebuttal evidence. As already stated above, the

suit was dismissed on the first date fixed for the appellant's/plaintiff's

evidence and plaintiff/appellant was in the process of leading his

evidence.

8. In view of the above, impugned judgment and decree is set

aside. The Trial Court is directed to allow the plaintiff to complete his

evidence, where-after the defendants will be allowed to lead their

evidence, and thereupon after following the due process of law, the

suit will be decided in accordance with law at the stage of final

arguments.

9. Accordingly, while accepting the appeal and setting aside

the impugned judgment dated 7.7.1999, the suit is remanded back to

the Trial Court for a decision in accordance with law. Since the

respondents/defendants are not represented in this Court at the time

of hearing of appeal, the Trial Court will issue notices to the defendants

and also their earlier counsel, before proceeding to take further steps

in the suit. The appellant/plaintiff to appear before the District and

Sessions Judge, Tis Hazari, Delhi on 29.11.2011, and on which date or

any other subsequent date, the District and Sessions Judge, Tis Hazari,

Delhi will mark the suit to a competent Court for hearing and disposal

in accordance with law. The Trial Court record be sent back.

                                                 VALMIKI J. MEHTA,J
OCTOBER         03, 2011
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