Civil Revision No.1914 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1914 of 2011 (O&M) Date of Decision: April 18, 2011 Mrs.Balbir Kaur and others .....Petitioners v. Balwinder Kaur and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Raman Sharma, Advocate for the petitioners. Mr.R.C.Setia, Sr.Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for quashing of order dated 5.3.2011 passed by learned trial Court directing respondents no.1 to 4-defendants no.4 to 7 to adduce evidence. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that suit for declaration to the effect that property bearing house No.39, Rajinder Nagar, Jalandhar, shown red in colour in the site plan, comprising of open plot and ground floor, is owned by plaintiff no.2 and defendants no.1 to 3, i.e., the heirs of late S.Baldev Singh jointly, and that plaintiff no.2 is having one-half share and defendants no.1 to 3 as heirs of S.Baldev Singh the other half share, whereas the first floor is in ownership of defendant no.7, as shown in green colour in the site plan and plaintiff no.1 and defendant no.7 are further entitled for residence in the building as long as they wish with consequential relief that the defendants be permanently restrained from making alienation of the suit property adversely affecting Civil Revision No.1914 of 2011 (O&M) -2- the ownership and possessory rights of the parties, as per family settlement executed by plaintiffs, the predecessor-in-interest of defendants no.1 to 3 and defendant no.7, namely, S.Baldev Singh. Suit was contested by present petitioners-defendant nos.1 to 3, i.e., predecessor-in-interest of S.Baldev Singh. However, admitted written statement was filed by respondents no.1 to 4-defendants no.4 to 7. They have not contested the suit of respondents-plaintiffs on any ground, as is clear from the written statement filed by them and rather they have taken the plea that they are having no objection if the suit filed by respondents- plaintiffs is decreed, as per the settlement arrived at between the parties. Issues were framed by learned trial Court in view of contesting written statement filed by present petitioners-defendants no.1 to 3. Evidence was adduced by respondents-plaintiffs when the present application was filed by respondents no.1 to 4-defendants no.4 to 7 permitting them to adduce evidence, which was contested by present petitioners-defendants no.1 to 3. Learned trial Court allowed respondents no.1 to 4-defendants no.4 to 7 to adduce evidence by relying upon a decision rendered by a Coordinate Bench of this Court in Pritpal Singh Aurora v. Rajinder Singh Aurora and others, 2009(3) Civil Court Cases 752. It has been contended by learned counsel for the petitioners that Pritpal Singh Aurora's case (supra) is not applicable to the facts of present case, as in this case respondents no.1 to 4-defendants no.4 to 7 are not at issue on any point with respondents-plaintiffs and that only present petitioners-defendants no.1 to 3 are contesting the suit filed by respondents- plaintiffs and hence, it is contended that when they are not at issue on any point with respondents-plaintiffs, they are having no right to adduce evidence and that rather suit filed by respondents-plaintiffs against respondents no.1 to 4-defendants no.4 to 7 should have been decreed by learned trial Court under Order XV Rule 2 of the Code of Civil Procedure (hereinafter to be referred as `the Code'). On the other hand it has been contended by learned counsel for respondents no.1 to 4-defendants no.4 to 7 that though they are not at issue with respondents-plaintiffs, however, they are also having dispute with present petitioners-defendants no.1 to 3, as they are denying the family settlement in which specific portion was given to respondents no.1 to 4- Civil Revision No.1914 of 2011 (O&M) -3- defendants no.4 to 7. Hence, it is contended that they are having right to adduce evidence. It is pertinent to reproduce Order XV Rule 2 of the Code, which reads as under:- “One of several defendants not at issue.-(1) Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants. (2) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.” A perusal of the aforementioned provision shows that when any of the defendants is not at issue with plaintiff on any question of law or fact, the Court may at once pronounce the judgment for or against such defendant and the suit shall proceed against the other defendants. In this case respondents no.1 to 4-defendants no.4 to 7 are not at any issue on any question of law or fact with respondents-plaintiffs. Hence, there is force in the argument of learned counsel for the petitioners- defendants no.1 to 3 that when respondents no.1 to 4-defendants no.4 to 7 are not at issue on any point with respondents-plaintiffs, they are having no right to adduce evidence and rather the suit of plaintiffs qua them should have been decreed by learned trial Court. The contest is only between respondents-plaintiffs and the present petitioners-defendants no.1 to 3. Hence, when evidence has already been concluded by respondents-plaintiffs, it cannot be said that respondents no.1 to 4-defendants no.4 to 7 are having an independent right to adduce evidence to support the case of respondents-plaintiffs. Rather on the peculiar facts of this case, only contesting defendants no.1 to 3, i.e., present petitioners, are having right to adduce evidence. Facts of Pritpal Singh Aurora's case, on which reliance has been placed by learned trial Court, is not applicable to the facts of present case. In that case only general proposition was held that every party is Civil Revision No.1914 of 2011 (O&M) -4- having right to adduce evidence. However, provision of Order XV Rule 2 of the Code was not discussed in the said judgment and complete facts of the case have also not been given in the said judgment. In view of these facts, I am of the view that learned trial Court has committed illegality and material irregularity in permitting respondents no.1 to 4 -defendants no.4 to 7 to adduce evidence in this case, whereas they are not at issue on any point of fact or law with respondents-plaintiffs Hence, the present revision petition is accepted. Impugned order passed by learned trial Court permitting respondents no.1 to 4- defendants no.4 to 7 to adduce evidence is set aside. 18.4.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.