Civil Revision No. 3161 of 2007 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 3161 of 2007
Date of decision: 29.04.2009.
Tarsem Lal Chadha and others
Petitioners
Versus
Chanchal Rani and others
...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Naresh K. Joshi, Advocate for the petitioners.
Mr. Salil Sagar, Senior Advocate with
Ms. Lovejinder Kaur, Advocate for respondents No. 1 & 2
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S.D.ANAND, J.
The facts, having relevant bearing on the disposal of the
controversy may be indicated in the first instance.
Janak Raj Chadha married twice. The petitioners-
defendants are children of Janak Raj Chadha from one wife; while
respondent no.1 Chanchal Rani is the second wife of Janak Raj
Chadha and respondents no.2 and 3 are the children born to her
from the loins of Janak Raj Chadha. It was respondent no.1
Chanchal Rani who filed a suit “for permanent injunction restraining
the defendants from alienating and transferring in any manner the
property and making construction, additions and alterations in the
property No.411, Adarsh Nagar, Jalandhar measuring 2K-3Marlas
and also from interfering in the ownership rights of plaintiff” on the
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averments which may be indicated as under:-
The property in suit was owned by Janak Raj Chadha
who died on 17.1.1998. He executed a registered will on 14.7.1995,
bequeathing the property aforementioned in favour of respondent
no.1. On the basis of that will, it is the respondent-plaintiff No.1 who
is exclusive owner of that property. Inspite of the fact that the
defendants-petitioners have nothing to do with the title of that
property, they started negotiating for the sale of that property after
converting it into separate units and making construction/alterations
therein. The plaintiff-respondent no.1 had to file a suit for relief
aforementioned when her entreaties to the defendants to desist from
doing so fell on latter’s deaf-ears. Respondents No.2 and 3 (who
were children of Chanchal Rani from the loins of her deceased
husband) were impleaded as proforma defendants at the trial.
The suit was contested by the defendants-petitioners
resisted the suit and also who denied the factum of the validity of the
alleged will.
Along with the suit, a plea under Order 39 Rule l and 2 for
the grant of interim restraint on alienation of the property in suit was
filed. The learned Trial Court granted exparte stay order.
On entering appearance before the learned Trial Court,
the defendants-petitioners conceded the confirmation of interim stay
order till the disposal of the suit and it was so ordered accordingly.
Thereafter, the defendants-petitioners Tarsem Lal
Chadha and Shiv Kumar Chadha made the following statement
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before the learned Trial Court on 24.5.2005.
“The property in question has not been transferred even
in the name of Sh. Janak Raj. So, none of the parties to
the present suit, can alienate the same. We undertake
that we will not alienate the said property nor make any
construction, addition or alteration in the property in
dispute. The suit may be decided accordingly.”
In the context of that statement, Viney Kumar and
Ashwani Kumar respondents also made a statement to the following
effect:-
“We have heard the statement of defendant Nos.1 & 2
and we own the same. The suit may be decided
accordingly. At this stage we do not wish to cross
examine the plaintiff’s witnesses as not required at this
stage.”
Apart therefrom, the learned counsel appearing on behalf
of the defendants No. 1 and 2 therein made the following statement:-
“In view of the statements made by the defendants above,
at this stage, cross examination of PW Swaran Singh &
Prithvi Pal Singh present in the Court is not required to be
conducted.”
The learned Trial Court noticed the above averments and
passed the following order:-
“PWs are present for cross examination namely Swaran
Singh & Prithvi Pal Singh but the counsel for the
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defendants have made a request that the defendants
undertake not to raise construction, addition or alteration
in the property in dispute as the property in question has
not been transferred even in the name of Sh. Janak Raj,
so, none of the parties to the present suit can alienate the
same. Thus, the suit may be decided accordingly and at
this stage, the cross examination of the present PWs is
not required to be conducted. The statement of the
defendants Tarsem Lal Chadha, Shiv Kumar Chadha,
Vinay Kumar & Ashwani Kumar have also been recorded
separately, alongwith the statement of Sh. H.L.Sharma,
Adv. for the defendant Nos.1 & 2. Now to come up on
29.05.2006 for consideration upon the statements made
by the defendants.”
Thus, the matter was adjourned to 29.5.2006 ” for
consideration upon the statements made by the defendants”.
On 29.5.2006, the following order was recorded by the
learned Trial Court:-
“Shri Rakesh Gupta, Advocate, filed the P.O.A. on behalf
of the defendant Nos.4 & 6. Learned counsel for the
plaintiff closed the evidence. Learned counsel for the
defendant Nos.1 & 2 had made a request that in case, the
case is not to be decided on the basis of the statements
given by the defendants on the previous date of hearing,
he wants to file the application for giving permission to
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cross examine the PWs. Now to come up on 27.07.2006
for filing the same if any and for DWs.”
The interim order dated 27.7.2006 does not notice the
disposal of the controversy aforementioned. It only noticed that no
DW was present and the matter was adjourned to 8.9.2006. On that
date, exparte orders were passed against two defendants as none
appeared on their behalf. The evidence of the defendants/petitioners
was ordered to be closed under the orders of the Court by recording
the following order:-
“Inspite of calling the present case time & again, none
has put in appearance on behalf of the defendant Nos.4 &
6 nor their counsel has put in appearance. In the given
circumstances, the defendant Nos.4 & 6 are proceeded
against exparte. No evidence is present on behalf of the
remaining defendants. It was the last opportunity. Inspite
of giving several opportunities, the defendants failed to
adduce the evidence. Thus, the evidence of the
remaining defendants is closed by the order of the Court.
Arguments have also been heard upon the application for
producing the original will dated 23.10.1997 moved on
behalf of the plaintiff. In the present case, the defendants
have not led any evidence qua the will or otherwise.
Thus, the application has become infructuous.
Accordingly, the application stands disposed off. Now to
come up on 21.09.2006 for arguments.”
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The defendants-petitioners (Tarsem Lal Chandha and
Shiv Kumar Chadha) had filed an application (Annexure P-6) dated
5.6.2006 “for disposal of the suit on merits after cross examination of
Swaran Singh and Prithvi Pal Singh PWs”.
The application was resisted on behalf of the plaintiffs-
respondents which was rejected by the learned Trial Court, vide
impugned order dated 12.5.2007.
The learned counsel, appearing on behalf of the
defendants-petitioners, argued that the entire approach of the
learned Trial Court was legally inappropriate inasmuch as it ought to
have either proceeded to dispose of the suit in the light of the
statements made by them on 24.5.2006 or allowed the recall of PWs
Swaran Singh and Prithvi Pal Singh for cross-examination.
The learned Senior Counsel, appearing on behalf of the
plaintiffs-respondents, argued that the plea for additional evidence
having been filed after the closure of defendants-petitioners evidence
under the orders of the Court on 8.9.2006, the defendants-petitioners
cannot be heard to argue in favour of the allowance of the additional
evidence plea. It was also argued that it was for the defendants-
petitioners to insist upon the Trial Court to grant an order in the light
of the statement made by them on 24.5.2006 and if no order in the
light of their aforementioned statement came to be granted by the
learned Trial court and defendants-petitioners continued to
participate in the proceedings till their evidence was closed under
the orders of the Court and that order attained finality for want of a
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challenge, they would be deemed to have waived their right for the
recall of PWs Swaran Singh and Prithvi Pal Singh.
In an act of resistance, the learned counsel appearing on
behalf of the defendants-petitioners argued that the raising of an
inference on the point of waiver would be inappropriate in view of the
fact that the defendants-petitioners reiterated the relevant request
before the learned Trial Court on 29.5.2006 as well and they had to
compulsively file a plea for additional evidence when no heed was
paid to their request by the learned Trial Court. In that very context,
it was argued that the statements of PWs Swaran Singh and Prithvi
Pal Singh may have a very relevant bearing on the point in
controversy (i.e. the validity of the impugned will) because they are
scribe and attesting witness of the will.
Insofar as the relevancy of the statements of PWs
Swaran Singh and Prithvi Pal Singh is concerned, there can be no
escape from the conclusion that their testimony is bound to impact
the ultimate adjudication of the controversy. One of them is a scribe
of the impugned will; while the other is attesting witness thereof. If
they are not allowed to be recalled for cross-examination, it is
obvious that their unchallenged examination-in-chief would favour the
plaintiffs-respondents wholehog.
Insofar as the waiver plea raised by the learned Senior
Counsel appearing on behalf of the plaintiffs-respondents is
concerned, the plea raised is not on a firmer footing. The essential
purpose of procedural law is to do substantial justice between the
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parties. It is not the purpose of law to punish a negligent party. It
would be apparent from a perusal of the statement dated 24.5.2006
that defendants-petitioners had made an absolutely precise averment
that since the property had not been transferred in the name of the
predecessor-in-interest of the parties, neither party could alienate it.
While undertaking that they would not, on their part, alienate that
property and also not make any construction/additional alteration,
they requested for the disposal of the suit ‘accordingly’. It is the
learned Trial Court only which refrained from passing any orders,
either way, upon that statement and adjourned the matter to
29.5.2006 ‘for consideration upon the statements made by the
defdts’. On the adjourned date, the learned counsel appearing
behalf of the defendants-petitioners reiterated that request. It
appears that the learned Trial Court was not inclined to pay any heed
to that part of the request which was otherwise noticed in that order
and it was in the light of the attitude of the learned Trial Court only
that the learned counsel appearing on behalf of the defendants-
petitioners applied for the leave of the Court to file a formal
application for permission to cross examine the PWs. That
application is not noticed to have been filed on the adjourned date
i.e. 8.9.2006. it came to be ultimately filed later on. It cannot, thus,
be said with any justification that any waiver on the part of the
defendants-petitioners in the context is inferrable.
It is apparent from the record that the learned Trial Court
was in the know of the fact that the defendants-petitioners had
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volunteered to get the suit disposed of in the light of the statement
made by them. It was for the learned Trial Court to obtain the
reaction of the plaintiffs therein and to pass whatever orders it
deemed fit in the circumstances of the case. It could dispose of the
suit in terms of the statement made by the defendants-petitioners or
it could refuse to dispose of the suit on the basis thereof, either on
account of resistance offered on behalf of the plaintiffs-respondents
or for any other reason. The record indicates that the learned Trial
Court did not adopt any precise response of that category. The
refrain in the context, on the part of the learned Trial Court cannot,
work to the detriment of the defendants-petitioners for drawing an
inference on point of a waiver.
Insofar as the attaining of finality of the order dated
8.9.2006 is concerned, it also cannot eclipse the invalidity of the
impugned order. There can be no estoppel against the law. In this
case, the procedural law ordained the learned Trial Court to order
the recall of PWs Swaran Singh & Prithvi Pal Singh, if it was not
inclined to dispose of the suit on the basis of the statement made by
the petitioners before that court on 24.5.2006.
The point advocated on behalf of the respondents-
plaintiffs would have been valid, if it was a pure and simple case of
closure of evidence under the orders of the Court and if the affected
party were to apply for the leave of the Court to adduce additional
evidence. In that case, ofcourse, the plea of attaining of finality of
the former order would have hindered the
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consideration/maintainability of the latter plea. The present
controversy is based upon entirely different facts and circumstances
of the case.
It is otherwise apparent from the record that the
defendants-petitioners had raised an incorrect plea that they had
made that statement dated 24.5.2006 on a verbal promise by the
plaintiff-respondent that she would withdraw the suit. For want of
evidence, to buttress it the learned Trial Court appropriately declined
it. At the same time, that too does not affect the validity of the finding
by this court that the recall of Swaran Singh & Prithvi Pal Singh PWs
had to be, in any case, ordered by the learned Trial Court if it was not
inclined to dispose of the suit in the light of the statement made by
defendants-petitioners on 24.5.2006.
In the light of the foregoing discussion, the petition shall
stand allowed. The impugned order shall stand set aside. The
learned Trial Court shall proceed to recall PWs Swaran Singh &
Prithvi Pal Singh for the purpose of cross-examination. Thereafter,
the learned Trial Court shall proceed further in accordance with law.
April 29, 2009 (S.D.Anand) Pka Judge