1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT Smt. Saroj Devi Vs. Assistant Mining Engineer (Recovery) & Anr. (S.B. Civil Misc. Appeal No.1929/2010) S.B. Civil Misc. Appeal under Order 43 Rule 1(d) CPC, 1908. Date of Order :- August 05, 2010 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Dheeraj Tripathi, for the appellant. The appellant is aggrieved by the order dated 02.04.2009, passed by the learned Additional District Judge, Kotputli, District Jaipur, whereby the learned Judge has accepted the appeal filed by the respondents-defendants and has quashed and set aside the judgment and decree dated 04.05.2005 and has remanded the case back to the learned trial court. The learned Judge has also imposed a cost of Rs.10,000/- upon the defendants and has directed the trial court to give a chance to both the defendants-respondents to produce their evidence before it. In brief, the facts of the case are that the appellant had filed a civil suit for permanent injunction against the defendants-respondents stating therein that there is a house situated 2 behind Heera Moti Cinema, Kotputli in which the appellant and Smt. Santosh have half shares and the partition has not taken place between them. It was further stated that since Babu Lal Gupta has no relation with the said property, therefore the defendants-respondents have no right to recover the dues of Babu Lal Gupta by auctioning the property of the appellant. The defendants- respondents filed written statements to the suit and denied the averments. Thereafter, the learned trial court framed eight issues and recorded the evidence. On behalf of the appellant-plaintiff, Saroj Devi (PW-1), Satya Narayan (PW-2) and Madan Lal (PW-3) were examined and various documents were produced. On behalf of the defendants- respondents, no evidence was produced. On 13.04.2005, an application was moved on behalf of the O.I.C. with the request that the written statements may be treated as the evidence of the defendants. On which the learned trial court informed the O.I.C. that on the basis of the written statements cross-examination cannot be made, therefore, it cannot be read in evidence. Even then the OIC was adamant. Therefore, the learned trial court closed the right of the defendants to produce their evidence. Vide judgment and decree dated 04.05.2005, the learned trial court restrained the respondents by way of 3 permanent injunction. Aggrieved by the judgment and decree dated 04.05.2005, the defendants- respondents filed an appeal before the learned Additional Sessions Judge, Kotputli. Vide judgment dated 02.04.2009, the learned appellate court allowed the appeal and set aside the judgment and decree dated 04.05.2005 and remanded the case back to the learned trial court as mentioned above. Hence, this appeal before this Court. Mr. Dheeraj Tripathi, the learned counsel for the appellant, has contended that it was clearly given out by the O.I.C. that the defendants do not wish to submit any evidence and the written statements submitted by them should be treated as their evidence. Once such a concession was given by the O.I.C., the learned trial court was certainly justified in passing the judgment and decree in favour of the appellant. Therefore, he has contended that the judgment dated 02.04.2009, setting aside the order dated 04.05.2005, is unsustainable. Heard the learned counsel for the appellant and perused the impugned order. A bare perusal of the impugned judgment clearly reveals that according to the defendant 4 No.1, Mr. Babu Lal Gupta owed Rs.55,66,248/- to the Government which the government had to recover from him. According to the defendants, in order to escape his liability of repaying the said amount, Babu Lal Gupta had transferred his property in the name of his wife and in the name of his sister-in- law (his brother's wife). The learned Judge has clearly noted that the O.I.C. was not justified in submitting an application stating that the written statements should be treated as piece of evidence. The learned Judge has also noted that after giving three chances to the defendant No.1, the right to produce its evidence was closed. The said chances were given to the defendant No.1 and not to defendant No.2. Considering the fact that a huge amount is involved, considering the fact that the defendant No.2 as well as the defendant No.1 deserve to have their evidence produced before the trial Court, the conclusion drawn by the learned Judge cannot be faulted. Therefore, the learned Judge was certainly justified in setting aside the judgment and decree dated 04.05.2005 and in remanding the case back to the learned trial court. The learned Judge was also aware of the fact that the appellant would be put to certain inconvenience; in order to ameliorate this inconvenience caused to the appellant, the learned Judge has rightly imposed a cost of Rs.10,000/- on 5 the defendant No.1 to be paid out from the salary of the O.I.C. Hence, this Court does not find any perversity or illegality in the impugned order. In this view of the matter, this appeal is devoid of any merit. It is, hereby, dismissed. Consequently, the stay petition is also dismissed. (R.S.CHAUHAN)J. Manoj Solanki-