Lekh Raj v. Rita & Ors.

1. The petitioner challenges the order dated 11.03.2019 passed by the learned Trial Court in CS No. 804/2017 titled Rita vs. Lekh Raj & Ors, whereby the application under Order XVIII Rule 17 CPC, 1908 filed on behalf of petitioner/defendant no.1 seeking recording of evidence of one Sh. Anjani Kumar, was dismissed.

2. Mr. U.M. Tripathi, learned counsel appearing for the petitioner submits that though said Sh. Anjani Kumar was not named in the list of witnesses, however, his evidence becomes crucial for the reason that said Sh. Anjani Kumar is the person who has executed the purported title documents in favour of the respondent/plaintiff as also, simultaneously, executed title documents in favour of the petitioner/defendant no.1.

3. Learned counsel submits that the learned Trial Court has dismissed the application for the reason that despite number of opportunities having been granted to the petitioner/defendant no.1 to examine its witnesses, the petitioner/defendant no.1 did not take proper steps within time to examine or even seek examination of the said Sh. Anjani Kumar.

4. Learned counsel also submits that the petitioner be afforded one opportunity to record the evidence of Sh. Anjani Kumar for the purpose of establishing whether the documents of either of parties are genuine or not. Learned counsel submits that the said examination would, to a large extent, assist the learned Trial Court in resolving the lis before it, that too, by way of evidence which could, hardly be called as irrelevant.

5. Per Contra, Mr. Dilip Kumar Jha, learned counsel appearing for the respondent/plaintiff submits that the entire motive behind the application filed before the learned Trial Court as also the present petition is only to delay and protract the trial.

6. Learned counsel vehemently submits that it was only after the closure of defendant’s evidence that the matter was kept for final hearing and further submits that it was only after passing of two dates of hearing before the learned Trial Court, that the application under Order XVIII Rule 17 of CPC, 1908 was filed by the petitioner/defendant no.1 to further delay and protract the trial.

7. Learned counsel also brings to the Court’s attention that though the impugned order was passed on 11.03.2019, the present petition was filed only on 31.08.2019. In other words, learned counsel submits that the petitioner is habitual of delaying the suit, as also is not at all affected by the impugned order.

8. Learned counsel submits that the petition should be dismissed with costs.

9. This Court has considered the rival submissions and has perused the impugned order as also seen the other documents which are relevant and are placed on the record.

10. On a query by this Court, the counsel are ad idem on the issue that Sh. Anjani Kumar indeed was the person who had signed and executed the documents, one set of those which were in favour of petitioner/defendant no.1 and the other set in favour of the wife of defendant no.2-Achhar Singh and mother of the parties.

11. Having regard to the fact that both the parties have examined their own witnesses in support of their contentions before the learned Trial Court, however, upon the submissions of the parties, this Court is of the considered opinion that the examination of Sh. Anjani Kumar would greatly lead to the learned Trial Court in coming to a firm conclusion as to which of the set of documents are genuine.

12. This Court is not making any observations in respect of the genuineness or otherwise of the documents, which is prerogative of the learned Trial Court to deal with. However, keeping in view the aforesaid, this Court is of the considered opinion that the learned Trial Court shall permit the recording of evidence of Sh. Anjani Kumar by petitioner/defendant no.1 on the next date of hearing, i.e., 29.05.2023. The petitioner is directed to take appropriate steps in this regard.

13. The learned Trial Court shall consider the application so filed by petitioner/defendant no.1 and, if possible, summon Sh. Anjani Kumar for recording of evidence on 29.05.2023.

14. Once examination is complete, the learned Trila Court shall allow the respondent to conduct the cross-examination in the way and manner as deemed fit by it. After the conclusion of recording of such evidence, the learned Trial Court shall proceed to dispose of the suit in accordance with law within four months thereafter.

15. However, the aforesaid direction is subject to the payment of costs of Rs.20,000/- by the petitioner/defendant no.1 to respondent on or before 29.05.2023 against a proper receipt.