Baheti Education Trust vs Nemaram
2022 Latest Caselaw 14735 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15339/2022

Baheti Education Trust, Through Its President Shri Shyam Baheti S/o Shri Bhawar Lal Ji Baheti, Aged 65 Years, By Caste Maheshwari, R/o Kasturi Mansion, Near Hotel Kasturi Orchid, Pal By Pass Road, Jodhpur.

----Petitioner

Versus

1. Nemaram S/o Shri Narayan Ram, By Caste Nayak, R/o Gram Mathania, Tehsil Osiya, District Jodhpur.

2. Smt. Shanti W/o Shri Tejaram, By Caste Bheel, R/o 9 Marfat Narayan Choudhary, Village Sari Ki Dhani, Post Madawas, Tehsil Rohat, District Pali. Presently Resides At Bhilo Kaa Bass, Village Hanjawa, Post Kuithana, Tehsil Rohat, District Pali.

3. Narayan Chaudhary S/o Nemaram Chaudhary, By Caste Patel, R/o G-18, Shastri Nagar, Jodhpur.

4. Urban Improvement Trust, Through Its Secretary, Uit, Jodhpur.

5. State Of Rajasthan, Though Tehsildar, Jodhpur.

----Respondents

For Petitioner(s) : Mr Vikas Balia Sr. Advocate assisted by Ms Pragya Lakhani For Respondent(s) : Mr Muktesh Maheshwari Mr Aidan Choudhary Mr N.R.Choudhary

HON'BLE MR. JUSTICE VIJAY BISHNOI Judgment / Order 15/12/2022

This writ petition is filed by the petitioner-plaintiff

seeking following reliefs:

(2 of 12) [CW-15339/2022]

"It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to allow this writ petition and by a suitable writ, order or direction may kindly be issued to the effect that:

a) The rebuttal evidence (Annexure-7) filed by the petitioner may kindly be marked as exhibits and the documents placed therewith be allowed to be admitted in evidence in part D.

b) The order impugned dated 19.9.2022 (Annexure-10) allowing the application filed by the defendant No.2 under Order 18 Rule 3 may kindly be quashed and set aside.

c) That in the alternate and without prejudice to the aforesaid, the Ld. Trial Court be directed to recall the witness of the petitioner so that relevant evidence may be led.

d) Any other writ, order or direction which this Hon'ble Court deems fit in the facts and circumstances of the present case may kindly be passed in favour of the petitioners.

e) Cost of the writ petition may kindly be awarded in favour of the petitioner.

Brief facts of the case are that the petitioner-

plaintiff filed a suit for declaration and permanent

injunction before the District Judge, Jodhpur, which was

later on transferred to the Court of Additional District

Judge No.5, Jodhpur Metropolitan (hereinafter to be

referred as 'the trial court') seeking reliefs of cancellation

of sale deed executed by the respondent-defendant No.1 in

favour of the respondent-defendant No.2 alleging that

though the respondent-defendant No.1 executed an

agreement on 28.06.2004 for sale of land in question in

favour of petitioner-plaintiff but later on he transferred the

(3 of 12) [CW-15339/2022]

said land in favour of the respondent-defendant No.2 vide

registered sale deed dated 13.05.2005. It was alleged by

the petitioner-plaintiff that the said transfer of land by the

respondent-defendant No.1 in favour of respondent-

defendant No.2 is Benami, therefore, the same be

cancelled.

The respondent-defendants contested the suit

denying the allegations that the transaction is Benami. On

the basis of the pleadings of the party, the trial court

framed as many as 13 issues, however, later on, one

additional issue was framed and one issue was amended.

The evidence of the parties was concluded and opportunity

was awarded to the petitioner-plaintiff to lead rebuttal

evidence. At this stage, the petitioner-plaintiff filed an

application under Order XVI Rule 6 CPC with a prayer for

summoning certain documents from the Income Tax

Department pertaining to the proceedings initiated against

respondent-defendant No.3, wherein the Income Tax

Department has concluded that the sale deed executed by

the respondent-defendant No.1 in favour of respondent-

defendant No.2 is Benami and thereafter order of

attachment of the property has also been passed by the

Income Tax Authority. The said application filed by the

petitioner-plaintiff came to be dismissed by the trial court

vide order dated 03.02.2020 while observing that those

documents are not at all relevant.

Being aggrieved with the order dated

03.02.2020, the petitioner-plaintiff preferred S.B.Civil Writ

(4 of 12) [CW-15339/2022]

Petition No.2037/2020 before this Court and a Coordinate

Bench of this Court vide order dated 13.02.2020 while

allowing the said writ petition has set aside the order dated

03.02.2020 passed by the trial court and also ordered for

allowing the application filed by the petitioner-plaintiff

under Order XVI Rule 6 CPC with further direction to the

trial court to summon the documents/record as prayed by

the petitioner-plaintiff in its application under Order XVI

Rule 6 CPC from the Office of Deputy Commissioner,

Income Tax Department, Jaipur. Pursuant to the order

dated 13.02.2020 passed by this Court, the said

documents were summoned by the trial court and at this

stage, the petitioner-plaintiff filed an affidavit in rebuttal

evidence on 27.01.2021 exhibiting the documents so

summoned from the Income Tax Department. The

respondent-defendant No.2 preferred an application under

Order XVIII Rule 3 CPC stating that the rebuttal evidence

filed by the petitioner-plaintiff through additional affidavit

cannot be permitted to be taken on record as the same is

in violation of provisions of Order XVIII Rule 3 CPC.

It is contended that as per Order XVIII Rule 3

CPC, the right to lead evidence in rebuttal can be exercised

by a party in relation to those issues wherein the onus of

proving them lies on the other party but in the instant

case, the onus of proving issue "whether the sale-deed

dated 13.05.2005 is Benami or not" is on the petitioner-

plaintiff and, therefore, the right to rebuttal cannot be

granted. The petitioner-plaintiff filed a reply to the said

(5 of 12) [CW-15339/2022]

application, however, the trial court vide order dated

19.09.2022 has partly allowed the application preferred by

the respondent-defendant No.2 under Order XVIII Rule 3

CPC and rejected the prayer of the petitioner-plaintiff to

exhibit the relevant documents summoned by the I.T.

Department. Being aggrieved with the same, this writ

petition is being preferred.

Learned counsel for the petitioner-plaintiff has

argued that the trial court has proceeded to allow the

application filed by the respondent-defendant No.2 under

Order XVIII Rule 3 CPC on hyper technical ground. It is

argued that the documents, which the petitioner-plaintiff

wants to place on record in rebuttal evidence were those

documents in respect of which a Coordinate Bench of this

Court vide order dated 13.02.2020 passed in SBCWP

No.2037/2020 has clearly held that those documents are

relevant. It is argued that once this Court has held that the

documents, which are sought to be produced in rebuttal

evidence, are relevant then there was no occasion for the

trial court to disallow those documents.

It is further argued that the documents

pertaining to the Income Tax Department, summoned by

the trial court, pursuant to the order passed by this Court

on 13.02.2020, cannot be rendered as mere showpiece

and the same ought to be taken on record by marking

them as 'exhibits'.

It is also submitted that the Coordinate Bench of

this Court in the order dated 13.02.2020 has rejected the

(6 of 12) [CW-15339/2022]

contention of the respondent-defendant that the petitioner-

plaintiff is not entitled to lead rebuttal evidence and he was

required to file an application under Order VII Rule 14 CPC

and Order XI CPC while observing that the said arguments

have no substance.

Learned counsel Mr Balia Sr. Advocate assisted

by Ms. Pragya Lakhani has submitted that the

observation/direction given by this Court vide judgment

dated 13.02.2020 operates as res judicata against the

respondents-defendant and as such they do not have any

right to object the placing of documents of the I.T.

Department on record. It is argued that it is well settled

that principles of res judicata apply in different stages of

the same proceedings.

It is further argued that even if it is assumed

that in view of the provisions of Order XVIII Rule 3 CPC,

the documents produced by the petitioner-plaintiff cannot

be taken on record as rebuttal evidence, the trial court

should have allowed the petitioner to produce those

documents as additional evidence by providing opportunity

to the petitioner-plaintiff No.2 to lead additional evidence

in view of the fact that this has already held that those

documents are relevant.

Learned counsel for the petitioner has

submitted that it is well settled that technicalities of law

should be construed to advance justice and not to defeat

justice.

(7 of 12) [CW-15339/2022]

Learned counsel has further argued that the

additional affidavit filed by the petitioner-plaintiff in the

form of rebuttal evidence should have been treated by the

trial court as an application for allowing the petitioner-

plaintiff to lead additional evidence because it is not in

dispute that the documents sought to be produced on

record as additional evidence were not available with him

at the time of producing his evidence before the trial court.

Learned counsel has, therefore, prayed that the

order impugned may kindly be set aside and the petitioner-

plaintiff be allowed to produce those documents summoned

by the trial court pursuant to the direction given by this

Court in order dated 13.02.2020 in rebuttal evidence or

alternatively, the petitioner-plaintiff be allowed to lead

additional evidence in respect of those documents.

Per contra, learned counsel appearing for the

respondent-defendants has vehemently opposed this writ

petition and argued that the trial court has not committed

any illegality in passing the impugned order disallowing the

petitioner-plaintiff to produce rebuttal evidence in respect

of the issue, onus of proving whereof is on the petitioner-

plaintiff.

Learned counsel for the respondents-defendants

has argued that the language of Order XVIII Rule 3 CPC is

unambiguous, which suggests that a party would only be

entitled to rebuttal evidence if the onus is on the opposite

side. It is submitted that the petitioner-plaintiff in the suit

claimed that the transaction in question is Benami and the

(8 of 12) [CW-15339/2022]

trial court has framed the specific issue on this point and

the onus of proving the same is on the petitioner-plainiff.

In such circumstances, the petitioner-plaintiff cannot lead

rebuttal evidence in respect of the issue, which is to be

proved by him only.

Learned counsel for the respondent-defendants

has placed reliance on a decision of Delhi High Court

rendered in Hemant Kumar Singhal vs. Indian

Overseas Bank and Anr., reported in (2020) 267 DLT

639.

Heard learned counsel for the rival parties and

perused the material available on record.

The petitioner-plaintiff, in the suit, has claimed

that the registered sale deed executed by the respondent-

defendant No.1 in favour of respondent-defendant No.2 is

Benami. The trial court has framed a specific issue on this

point and onus of proving the same is upon the petitioner-

plaintiff, however, the petitioner-plaintiff moved an

application under Order XVI Rule 6 CPC before the trial

court with a prayer for summoning some documents from

the Income Tax Department, wherein the Income Tax

Department has concluded that the sale of the property in

question by the respondent-defendant No.1 in favour of the

respondent-defendant No.2 is Benami. The trial court has

rejected the said application. The said action of the trial

court was questioned by the petitioner-plaintiff before this

Court and this Court vide order dated 13.02.2020 has set

aside the order passed by the trial court, whereby it has

(9 of 12) [CW-15339/2022]

rejected the application filed on behalf of the petitioner-

plaintiff under Order XVI Rule 6 CPC and directed the trial

court to summon the documents/record from the I.T.

Department, description of which is given in the application

filed by the petitioner-plaintiff under Order XVI Rule 6 CPC.

In the order dated 13.02.2020, this Court has

made following observations:

"The conclusion of the trial court pertaining to the irrelevance of the documents is apparently against the record inasmuch as, as already noticed, the plaint is inter alia based on the allegation pertaining to transaction being Benami and irrespective of the fact as to whether the same would have any implication ultimately qua the relief claimed in the suit, the petitioner essentially is entitled to lead evidence qua the said fact and once the documents sought to be summoned pertain to the said aspect, the rejection by indicating the same as irrelevant cannot be sustained.

............

Various submissions made by learned counsel for the respondent pertaining to delay in the suit, the fact that the plaintiff is not entitled to lead rebuttal evidence and that provisions of Order VII Rule 14 and Order XI CPC were not followed, apparently have no substance inasmuch as once the court has permitted leading of rebuttal evidence, the defendant cannot preempt the fact as to what evidence can be or would be led by the plaintiff."

From the above, it is clear that this Court has

given a specific finding that the documents ought to be

summoned by the petitioner-plaintiff from the I.T.

Department are relevant. The court has also rejected the

contention of the respondents-defendants that the

petitioner-plaintiff is not entitled to lead rebuttal evidence.

The order dated 13.02.2020 passed by this Court has not

(10 of 12) [CW-15339/2022]

been reversed or modified and the same has attained

finality.

It is settled that the principles of res judicata

apply in different stages of the same proceedings.

Reference can be placed on the decisions rendered in (i)

Bhanu Kumar Jain vs. Archana Kumar [(2005) SCC 787],

(ii) Satyadhyan Ghosal vs. Deorajin Debi (AIR 1960 SC

941), (iii) Prahalad Singh vs. Col. Sukhdev Singh [(1987)

1 SCC 727], (iv) Y. B. Patil vs. Y. L. Patil [(1976) 4 SCC

66], (v) Vijayabai vs. Shriram Tukaram [(1999) 1 SCC

693] and (vi) Hope Plantations Ltd. vs. Taluk Land Board

Peermade [(1999) 5 SCC 590].

As observed earlier, the Coordinate Bench of this

Court in order dated 13.02.2020 has held that the

documents sought to be produced by the petitioner-

plaintiff in rebuttal evidence are relevant and the objection

of the respondent-defendants of not allowing the

petitioner-plaintiff to lead rebuttal evidence has specifically

been rejected while observing that the respondent-

defendants are barred from raising the objection that the

petitioner-plaintiff is not entitled to lead rebuttal evidence

in respect of the issue, onus of proving the same is saddled

upon the petitioner-plaintiff, therefore, the respondent-

defendants are barred by principle of res judicata in raising

such objection. In such circumstances, the impugned order

passed by the trial court cannot be sustained.

(11 of 12) [CW-15339/2022]

Otherwise also, if the trial court has found

difficulty in allowing the petitioner-plaintiff to produce

rebuttal evidence in respect of an issue, onus of which is

saddled upon him, it can very well allow the petitioner-

plaintiff to lead additional evidence because once this Court

has held that the documents of the I.T. Department are

relevant, those documents cannot be ignored and allowed

to remain as it is. Such an action on the part of the trial

court would render those documents useless and would

also render the order of this Court dated 13.02.2020 as

inexecutable.

The judgment rendered in Hemant Kumar

Singhal vs. Indian Overseas Bank & Anr. (supra) on which

the learned counsel for the respondents has placed reliance

is of little help to the respondents as the facts of that case

are quite different because in the present case, this Court

has held that those documents are relevant and allowed

the petitioner-plaintiff to lead rebuttal evidence.

In view of the above discussion, this writ

petition is allowed. The impugned order dated 19.09.2022

is set aside, however, the petitioner-plaintiff is allowed to

lead evidence in respect of the issue, onus of proving

whereof is saddled on him. The trial court is directed to

treat the additional affidavit filed by the petitioner-plaintiff

as his application to lead additional evidence. The

respondent-defendants may also be allowed to cross-

(12 of 12) [CW-15339/2022]

examine the petitioner-plaintiff in relation to the said

additional evidence.

There shall be no order as to costs.

Stay petition stands disposed of.

(VIJAY BISHNOI),J.

masif-PS/-

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