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[Citation : RLW 2011(2) RJ 1244 (HC)]
(Rajasthan High Court)
Ratan Lal Vs. Smt. Devi Bai & Anr. (Lodha, J.)
HON'BLE SANGEET LODHA, J.
Ratan Lal
Versus
Smt. Devi Bai & Anr.
S.B. Civil Writ Petition No. 5232 of 2009, decided on 20.09.2010
writ petition allowed. (Paras 9, 10, 16 to 18)
It is to be noticed that in the instant case, vide order dated 17.11.2008 the Court suo moto straight away directed the parties to remain present on the next date for examination under Order X CPC. The order passed as aforesaid does not reflect that the Court after application of the mind found that the oral examination of the parties is necessary for elucidating matter in controversy in the suit. It is not in dispute that before directing the parties to remain present for examination under Order X, no attempt was made by the Court so as to obtain necessary information from the counsel appearing for the parties and ascertain the real points in controvers in the suit. That apart, a perusal of the statements of the parties recorded reveal that the Court has examined the parties on oath in detail in various factual aspects of the matter which run contrary to the provisions of Order X Rule 3 CPC. which provides that on such examination, only substance of the examination is required to be reduced in writing by the Court. Thus, in considered opinion of this Court, the Court below has committed a jurisdictional error in not following the procedure laid down under Order X Rules 1, 2 and 3 C.P.C. (Para 16)
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2. The petitioner/plaintiff filed a suit for cancellation of sale deed and permanent injunction against the respondents/defendants. The suit is being contested by the defendant No. 1, the respondent No. 1 herein, by filing a written statement thereto.
3. On an application being preferred by the petitioner/plaintiff seeking temporary injunction, vide order dated 27.8.2008 the Trial Court directed both the parties to maintain the status quo at the site regarding the disputed property so also in the revenue record. On 27.8.2008, the petitioner submitted application for appointment of Commissioner for local investigation so as to bring the correct factual position at the site on record. The application was allowed by the trial Court vide order dated 5.9.2008 and in pursuance there of, the commissioner appointed by the Court below inspected the site on 5.2.2009. It is alleged that during the pendency of the application for appointment of the Commissioner, the respondent taking advantage of the situation, forcefully dispossessed the petitioner and put her name plate on the gate of the land in dispute and the room existing on the land was also occupied by the respondents by putting her articles therein. In these circumstances, the petitioner/plaintiff preferred an application seeking leave to amend the plaint which was contested by the respondent/defendant No. 1 by filing a reply thereto.
4. It is submitted that on 17.11.2008, the Trial Court suo moto directed for examination of the parties under Order X Rule 2, CPC. The statements of the respondent/defendant No. 1 and the petitioner/plaintiff were recorded by the Court below on 11.2.2009 and 25.2.2009 respectively.
5. The application preferred by the petitioner/plaintiff seeking leave to amend the plaint has been rejected by the Trial Court by the order impugned on the ground that the amendment sought for by the petitioner/plaintiff runs contrary to his statement recorded under Order X Rule 2, CPC. Noticing the categorical admission of the plaintiff in his statement under Order X Rule 2, CPC that he had given possession of the land to the defendant Smt. Devi Bai after taking a loan of Rs. 1 lac and thereafter, he never remained in possession, the Court observed that it cannot be believed that the defendant had taken possession of the disputed land forcefully during the pendency of the suit. The Trial Court also noticed that even as per the sale deed produced on record, the possession was delivered by the petitioner/plaintiff to the respondent/defendant No. 1. Accordingly, the Court opined that the amendment sought for is not necessary for just decision of the controversy involved in the suit. However, yet another application preferred by the petitioner/plaintiff under Order VII Rule 11, CPC seeking leave to produce the video recording of the position of the disputed land at the site as on 28.8.2008 and 9.9.2008 was allowed and the videos produced were permitted to be taken on record. Hence, this petition.
6. It is contended by the learned counsel for the petitioner that the Trial court has seriously erred in relying upon the sale deed in question so also the statement of the petitioner recorded under Order X Rule 2, CPC so as to arrive at the conclusion that the petitioner/plaintiff was not in possession of the land at the time of filing of the suit. Learned counsel submitted that the sale deed itself is under challenge therefore, the same could not have been relied upon so as to ascertain the fact as to whether the petitioner/plaintiff
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