Dwarka Prasad vs Dharmesh
2022 Latest Caselaw 11131 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
               S.B. Civil Misc. Appeal No. 1148/2019

Dwarka Prasad S/o Shri Madan Lal Gupta, Aged About 54 Years,
B/c Agarwal, R/o Vishnu Dharamshala Road, Vakil Line, Aburoad,
District Sirohi (Rajasthan)
                                                                         ----Appellant
                                   Versus
Dharmesh    S/o    Shri   Punni      Lal      Jain,   B/c        Jain,   R/o   Vishnu
Dharamshala Road, Aburoad, District Sirohi (Rajasthan)
                                                                    ----Respondent


For Appellant(s)          :   Mr. Shambhoo singh
For Respondent(s)         :   Mr. Shreyansh Mardia



              HON'BLE MR. JUSTICE FARJAND ALI

                                 Judgment

 DATE OF JUDGMENT                       :::                       07.09.2022


 BY THE COURT:

1. The instant Civil Misc. Appeal has been filed by the

defendant-appellant Dwarka Prasad assailing the judgment and

decree dated 26.03.2019 passed by the learned Additional

Sessions Judge No.2 Aburoad, District Sirohi in Civil Appeal

No.24/2018 (11/2016) whereby the learned Appellate Court set

aside the judgment and decree dated 20.09.2016 passed by the

learned Civil Judge, Aburoad in Civil Original Suit No.41/2012 and

remanded the matter to the learned trial Judge with a direction to

proceed with the same in accordance with law.

2. The skeletal material facts necessary for the purpose of

deciding the instant appeal are that the plaintiff-respondent had

filed a suit against the defendant-appellant for eviction and

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recovery of rent. The defendant-appellant filed a written

statement denying the plaintiff as owner of the property-in-

question besides other specific contentions. On the basis of

pleadings of the parties, the learned trial court framed the issues.

The learned trial Judge on its own framed an issue as to whether

there was a relationship of owner and tenant in between the

parties. The plaintiff-respondent filed an application under Order

7 Rule 14 (3) of the CPC and prayed for taking on record

photostat copies of the Will, counter copy of rent receipt, rent note

of Gavari Devi, adoption deed (Godnama) and copy of 'Patta' of

the disputed property. The learned trial court allowed the

application of the plaintiff-respondent filed under Order 7 Rule 14

(3) CPC vide order dated 16.11.2013. On 10.07.2014, the

plaintiff-respondent submitted an affidavit in the form of

examination-in chief, upon which, the defendant-appellant moved

an application under Order 6 Rule 17 of the CPC for making

amendment in the written statement, which was accepted by the

learned trial Judge vide order dated 20.11.2014. The plaintiff-

respondent filed an application under Order 8 Rule 9 of the CPC

along with the format of counter reply, which remained pending

before the learned trial court. At this juncture, an application

under Order 11 Rule 12 of the CPC was submitted at the behest of

the defendant-appellant with a prayer to direct the plaintiff-

respondent to produce the original Will, 'Patta', rent deed and

original receipt of the rent in the court. Vide order dated

21.07.2015, the learned trial court allowed the said application

and directed the plaintiff-respondent to produce the original Will,

'Patta', rent deed and original receipt of the rent on record. It is

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worthwhile to mention here that after passing of the order dated

21.07.2015, the matter got adjourned at the request of

defendant-appellant on the ground of filing reply to the plaintiff-

respondent's application under Order 8 Rule 9 of the CPC as well

as at the request of the plaintiff-respondent for producing the

original documents on record. On 04.11.2015, the plaintiff-

respondent preferred another application averring therein that

prior to filing of the suit, the original Will and sale deed were

mortgaged with the Branch of SBBJ, Aburoad as the same were

taken in hypothecation against the loan account, therefore, the

documents may be summoned from the Bank. The matter got

adjourned on six different occasions for want of reply to the

application filed by the plaintiff-respondent. However, on

24.05.2016, the defendant-appellant moved another application

under Order 11 Rule 21 r/w Section 151 of the CPC with a request

to reject the suit filed by the plaintiff-respondent on account of his

failure to produce the documents on record. The learned trial

Judge allowed the application of the defendant-appellant filed

under Order 11 Rule 21 r/w Section 151 of the CPC and dismissed

the suit filed by the plaintiff-respondent vide judgment and decree

dated 20.09.2016.

3. Aggrieved by the judgment and decree dated 20.09.20216,

the plaintiff-respondent preferred an appeal before the learned

Additional Sessions Judge No.2, Aburoad for setting aside the

same. After hearing the counsel for the parties, learned Appellate

Court vide its judgment and decree dated 26.03.2019 allowed the

appeal while setting aside the judgment and decree dated

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20.09.2016 and the matter was remanded back to the learned

trial court for re-registration to its original number and then to

proceed further in accordance with the procedure established by

law. The said judgment and decree dated 26.03.2019 has been

challenged by the defendant-appellant before this Court by way of

filing the instant appeal.

4. Learned counsel Shri Shambhoo Singh representing the

defendant-appellant has submitted that judgment and decree

passed by the learned Appellate Court is against the facts on

record and contrary to the provisions of law; the judgment and

decree suffers from material irregularity and perversity. It has

been asserted that the learned trial court had passed the

judgment and decree while considering the provisions of law as

well as the facts of the case and, therefore, the same does not

deserve to be reversed. It has been submitted that the learned

trial court vide order dated 21.07.2015 directed the plaintiff-

respondent to place the original documents on record but the said

order was never challenged and thus, attained finality. In that

situation, the provision of Order 11 Rule 21 of the CPC is

attracted automatically and thus, the learned trial court has not

committed any error of law in allowing the application and in

dismissing the suit. He has further submitted that even if the

submissions as made by the plaintiff-respondent before the

learned trial court are taken to be true, then yet only two

documents are lying with the bank, while the other three

documents are in the custody/possession of the plaintiff-

respondent but despite several opportunities, the same were not

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produced by him before the court below. He has further submitted

that it is a case of willful disobedience and default on the part of

plaintiff-respondent owing to non-compliance of the order dated

21.07.2015, therefore, no interference is called for by this Court in

the judgment and decree passed by the learned trial court as the

learned Appellate Court has failed to appreciate the correct, legal

and factual aspects of the order in passing the impugned

judgment.

5. Per contra, learned counsel Shri Shreyansh Mardia,

representing the plaintiff-respondent, has vehemently opposed the

submissions advanced by the defendant-appellant's counsel. It has

been submitted that the learned appellate court has rightly

allowed the appeal and remanded the matter back to the trial

court. The judgment passed by the learned Appellate Court is a

well reasoned order and therefore, no interference is called for by

this Court. He has further submitted that after passing of the

order dated 21.07.2015, the plaintiff-respondent moved an

application for summoning the documents from the concerned

bank as he was not having possession of the same. He drew

attention of the Court towards the fact that after filing of the

application dated 04.11.2015, at the instance of the plaintiff-

respondent for summoning the documents from the bank, the

defendant-appellant sought several adjournments for filing reply

to the application and lastly, without filing the reply to the said

application, he moved another application dated 24.05.2016 for

dismissal of the suit as the documents were not produced on

record. That apart, the defendant-appellant also sought

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adjournment for fling reply to the application filed by the plaintiff-

respondent under Order 8 Rule 9 of the CPC. He has submitted

that in these circumstances when the application of the plaintiff-

respondent was pending before the trial court for summoning the

documents from the concerned bank, it was incumbent upon the

learned trial judge to decide the said application before passing

the impugned judgment dated 21.07.2015. The application filed

by the defendant-appellant under Order 11 Rule 21 of the CPC

refers to the same documents for which an application for

summoning the documents from the concerned bank was pending

adjudication before the learned trial Judge, therefore, in that

situation the learned trial Judge should have decided the

application filed by the plaintiff-respondent for summoning the

documents at first and then to pass any other order on application

under Order 11 Rule 21 of the CPC.

6. Heard learned counsel for the parties and perused the

material available on record.

7. I have considered the rival submissions made at Bar and

after anxious consideration of the matter, this court is of the view

that till the application was pending before the trial court for

summoning the documents from the concerned branch of SBBJ,

passing any order on the application filed by the defendant-

appellant under Order 11 Rule 21 r/w Section 151 of the CPC was

not justifiable. The plaintiff-respondent filed a suit for evicting the

defendant-appellant from the suit property and for recovery of

rent in which issues had already been framed by the learned

court. An application dated 18.05.2013 filed under Order 7 Rule

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14 (3) of the CPC had already been allowed by the learned trial

court while permitting the plaintiff-respondent to produce the

photostat copies of the original Will, 'Patta', rent deed and original

receipt of the rent etc. The photostat copies of the required

documents were already on record. After passing the order on

application filed under Order 11 Rule 12 of the CPC for producing

the documents on record, the plaintiff-respondent had already

clarified before the trial court that he was having possession of

some of the documents, while other two original documents were

lying with the bank i.e. SBBJ, Aburoad.

8. The intent of the plaintiff-respondent is very much obvious

from the application dated 04.11.2015 that he wanted to make

compliance of the order passed by the learned trial court and

that's why he moved an application for summoning the documents

from the concerned bank. The learned trial court ought to have

decided the said application dated 04.11.2015 before passing any

order on an application under Order 11 Rule 21 r/w Section 151 of

the CPC. The ultimate object of the court is to impart justice

instead of deciding the cases on technicalities as one cannot be

left remediless. This is a suit for eviction and recovery of rent

which is pending before the trial court since the year 2012. At this

stage; in the given circumstances, this Court is not inclined to

adjudicate upon the question that whether the order dated

21.07.2015 would fall and coverable under Order 11 Rule 12 or

under Order 11 Rule 14 of the CPC.

9. Be that as it may, the plaintiff-respondent was duty bound

to make compliance of the order dated 21.07.2015 and in fact he,

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by preferring applications, sought time for filing the original

documents which were not in his possession. He had moved an

application for summoning the same. It is not in dispute that the

order dated 21.07.2015 was never challenged and the same has

attained finality. Thus, it is imperative upon the plaintiff-

respondent to produce the documents on record, copies of which

have already been submitted by him along with the suit. The case

was at the stage of leading evidence.

10. In this background, this Court is of the firm opinion that the

learned Additional Sessions Judge No.2, Aburoad has not

committed any error, either factual or legal, while allowing the

appeal filed by the plaintiff-respondent vide impugned judgment

and decree dated 26.03.2019 passed in Civil Appeal No.24/2018

(11/2016) by which the judgment and decree dated 20.09.2016

passed by the learned Civil Judge, Aburoad in Civil Original Case

No.41/2012 has been quashed and set aside. The submissions

made by the learned counsel for the appellants are devoid of any

merit and thus, are hereby discarded. The appeal is dismissed

with no order as to costs.

11. Before parting, this Court deemed it just and appropriate to

direct the plaintiff-respondent to produce the original documents

namely the original Will, 'Patta', rent deed and original receipt of

the rent on record, before the trial court within a period of two

months of re-registration of the suit.

12. Records of the learned appellate court as well as learned trial

court be sent back. Since both the parties are represented by their

respective counsel, thus, they are directed to instruct their parties

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to appear before the trial court on 12.10.2022. The learned trial

court is directed to hear and decide the suit expeditiously.

(FARJAND ALI), J.

mamta/

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