RAJINDER TIWARIversusKEDAR NATH (DECEASED) THR. LRS. & ORS.

                         [2019] 5 S.C.R. 881                              881


                          RAJINDER TIWARI                                 A
                                  v.
          KEDAR NATH (DECEASED) THR. LRS. & ORS.
                (Civil Appeal Nos.3282-3283 of 2019)
                          MARCH 28, 2019                                  B

               [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 –       C
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            D
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              E
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.                                                                 F
      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
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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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                                 881
882            SUPREME COURT REPORTS                       [2019] 5 S.C.R.


A     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
B
      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
C     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]
D
            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
E     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.
F
            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,
G     Advs. for the Appellant.
             Ajay Kumar, Manmohan Jha, Sandeep Garausa, Vipin Kumar
      Jai, Advs. for the Respondents.



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       RAJINDER TIWARI v. KEDAR NATH (DECEASED)                                883
                      THR. LRS.

      The Judgment of the Court was delivered by                               A
      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)        B
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.
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       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-         D
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
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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           F
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          G
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

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884             SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A     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.
B
            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.
C            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.
D           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
E     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
F     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
G     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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        RAJINDER TIWARI v. KEDAR NATH (DECEASED)                                   885
          THR. LRS. [ABHAY MANOHAR SAPRE, J.]

trial of the suit is not legally sustainable. It is regardless of the fact that    A
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                B
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              C
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                D
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.                                                               E
       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.   F




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