RAJINDER TIWARI versus KEDAR NATH (DECEASED) THR. LRS. & ORS.
[2019] 5 S.C.R. 881, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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  RAJINDER TIWARI
 v.
     KEDAR NATH (DECEASED) THR. LRS. & ORS.
(Civil  Appeal Nos.3282-3283 of 2019)
 MARCH 28, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Suit – Appellant-plaintiff filed suit for permanent injunction
against the respondent-defendant in relation to the suit property –
Defendant’s right to file the written statement was closed – Suit
decreed – First appeal filed by the defendant – Dismissed – Second
appeal filed by the defendant – Allowed – Held: No justifiable
reason to deny the defendant of his right to file the written statement
– Trial in the suit was not done satisfactorily inasmuch as the
defendant was not afforded an adequate opportunity to file his
written statement – In the absence of any written statement, the
defendant could neither adduce proper evidence nor file any
documentary evidence in support of his case – Rights of the parties
were, therefore, decided by the two Courts (Trial Court and First
Appellate Court) by decreeing the suit and the High Court by
dismissing the suit on the basis of insufficient evidence, which caused
prejudice to both the parties – All the contesting parties to the suit
must get fair opportunity to contest the suit on merits in accordance
with  law – Impugned orders set aside – Matter remitted to the Trial
Court for deciding the civil suit afresh on merits in accordance
with law.
Allowing the appeals, the Court
HELD: 1.1 The trial in the suit has not been done
satisfactorily inasmuch
as the defendant was not afforded an
adequate opportunity to file his written statement. In  the  absence
of   any   written statement,  the  defendant   could  neither adduce
proper evidence nor file any documentary evidence in support of
his case. The rights of the parties were, therefore, decided by
the two Courts (Trial Court and First Appellate Court) by
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decreeing the suit and the High Court by dismissing the suit on
the basis of insufficient evidence. It caused prejudice to both the
parties. No justifiable reason is found to deny the defendant of
his right to file the written statement. He was entitled to file the
written statement and to adduce oral and documentary evidence
for contesting the suit on merits. All the contesting parties to the
suit must get fair opportunity to contest the suit on merits in
accordance with law. Matter is remitted to the Trial Court for
deciding the civil suit afresh on merits in accordance with law.
The respondents herein (legal representatives of original
defendant) are accordingly granted liberty to file their written
statement within one month from the date of their appearance in
the suit. The Trial Court will thereafter frame issues arising in
the suit on the basis of the pleadings of the parties and then allow
the parties to adduce their evidence in addition to the evidence
already adduced. The parties will also be allowed to file additional
documents, if they so wish. [Paras 14-20][884-E-H]
1.2  The   Trial   Court   will   decide   the   suit   on   the
basis of the pleadings and the evidence adduced by the   parties
uninfluenced by any judgment passed by the Courts in this Case
on the earlier occasion. No opinion expressed any on the merits
of the   issue while having formed an opinion to remand the case
to the Trial Court.
The   trial   be   completed   within   one   year.
The impugned orders are set aside and the suit is restored to its
original file for being tried on merits.  [Paras 21-24][885-C-E]
CIVIL APPELLATE JURISDICTION:  Civil Appeal Nos. 3282-
3283 of 2019.
From the Judgment and Order dated 03.11.2016 of the  High Court
of Delhi at New Delhi in RSA No.188 of 2010 and Order dated 26.04.2017
in C.M. Application No. 46865 of 2016 in RSA No. 188 of 2010.
R. K. Kapoor, Ms. Kheyali, Rajat Kapoor, Anis Ahmed Khan,
Advs. for the Appellant.
Ajay Kumar, Manmohan Jha, Sandeep Garausa, Vipin Kumar
Jai, Advs. for the Respondents.
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The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J.  1. Leave granted.
2. These appeals are directed against the final judgment and order
dated 03.11.2016 passed by the High Court of Delhi at New Delhi in
R.S.A. No.188 of 2010 whereby the High Court allowed the RSA filed
by the respondents herein and order dated 26.04.2017 in CM(Application)
No.46865 of 2016 by which the High Court  dismissed the application
for re-hearing of the second appeal filed by the appellant herein.
3. A few facts need mention hereinbelow for the disposal of the
appeals, which involve a short point.
4. The appellant is the plaintiff and the original respondent (now
represented by his legal representatives) is the defendant in the civil suit
out of which these appeals arise.
5. The appellant(plaintiff)  filed  Civil Suit No. 147 of 2007  against
the original respondent(defendant)  in the Court of Senior Civil Judge-
cum-Rent Controller(North East Dist.),  Karkardooma Courts, Delhi for
permanent injunction in relation to the suit property.
6. It is not in dispute that the defendant’s  right to file the written
statement was closed by the Senior Civil Judge with the result, the
defendant  could not file his written statement and nor could file any
documentary evidence.
7. The plaintiff then adduced his evidence. The defendant,
however, could only cross-examine the plaintiff’s witnesses without his
defence for want of written statement.
8.   By judgment/decree dated
01.02.2010, the Senior Civil Judge
decreed the plaintiff’s suit by passing a decree for permanent injunction
as prayed by him. The defendant felt aggrieved and filed first appeal
before the Additional District Judge.
9. By judgment dated 26.07.2010, the first Appellate Court
dismissed the appeal and upheld the judgment and decree passed by the
Senior Civil Judge.
10. The defendant felt aggrieved and filed second appeal in the
High Court of Delhi. By order dated 03.11.2016, the High Court allowed
   RAJINDER TIWARI  v. KEDAR NATH (DECEASED)
THR. LRS.
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the second appeal, set aside the judgment of the first Appellate Court
and dismissed the plaintiff’s (appellant’s herein) suit. Thereafter the
plaintiff filed application for re-hearing of the second appeal but the
same was dismissed by order dated 26.04.2017.  Against both the orders,
the appellant(plaintiff) has filed the present appeals by way of special
leave in this Court.
11. So,  the short question, which arises for consideration in these
appeals, is whether the High Court was justified in allowing the defendant’s
second appeal and was,  therefore,  justified in dismissing the plaintiff’s
(appellant’s herein) suit.
12. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow these appeals and
while setting aside the impugned orders, remand the case to the Trial
Court (Senior Civil Judge) for trying the civil suit afresh on merits in
accordance with law.
13. In our considered opinion, the need to remand the case to the
Senior Civil Judge for trying the civil suit afresh on merits has occasioned
for more than one reason.
14. First, we find that the trial in the suit has not been done
satisfactorily inasmuch as the defendant  was not afforded an adequate
opportunity to file his written statement.
15. Second, in the absence of any written statement, the defendant
could neither adduce proper evidence nor file any documentary evidence
in support of his case.
16. Third, the rights of the parties were, therefore, decided by the
two Courts (Trial Court and First Appellate Court) by decreeing the suit
and the High Court by dismissing the suit on the basis of insufficient
evidence.  In our view, it caused prejudice to both the parties.
17. Fourth, we do not find any justifiable reason to deny the
defendant of his right to file the written statement.  He was entitled to
file the written statement and to adduce oral and documentary evidence
for contesting the suit on merits.
18. It is a settled law that all the contesting parties to the suit must
get fair opportunity to contest the suit on merits in accordance with law.
A decision rendered by the Courts in an unsatisfactory conducting of the
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trial of the suit is not legally sustainable. It is regardless of the fact that
in whose favour the decision in the trial may go.
19. It is for these reasons, we are of the view  that these appeals
deserve to be allowed and matter is remitted to the Trial Court for deciding
the civil suit afresh on merits in accordance with law.
20. The respondents herein (legal representatives of original
defendant) are accordingly granted liberty to file their written statement
within one month from the date of their appearance in the suit. The Trial
Court will thereafter frame issues arising in the suit on the basis of the
pleadings of the parties and then allow the parties to adduce their evidence
in addition to the evidence already adduced. The parties will also be
allowed to file additional documents, if they so wish.
21. The Trial Court will decide the suit on the basis of the pleadings
and the evidence adduced by the parties uninfluenced by any judgment
passed by the Courts in this Case on the earlier occasion.
22. We, however, make it clear that we have not expressed any
opinion on the merits of the issue while having formed an opinion to
remand the case to the Trial Court.
23. Let the trial be completed within one year. Parties to appear
before the Senior Civil Judge (North East District), Karkardooma Courts,
Delhi on 02.04.2019.
24. The appeals thus succeed and are accordingly allowed. The
impugned orders are set aside and the suit is restored to its original
file
for being tried on merits as indicated above.
Divya  Pandey
                                Appeals allowed.
   RAJINDER TIWARI v. KEDAR NATH (DECEASED)
THR. LRS. [ABHAY MANOHAR SAPRE, J.]