The trial court must allow the right to lead evidence and frame issues before closing such rights, especially in cases alleging collusion in eviction.

J U D G M E N T

This Second Appeal, under Section 100 of CPC, has been filed against judgment and decree dated 21/9/2021 passed by Third District Judge, Gwalior (M.P.), in RCA No.217 of 2019 arising out of judgment and decree dated 15/11/2019 passed by 14th Civil Judge Class II, Gwalior, in MJC No.9 of 2016.

2. Facts necessary for disposal of present appeal, in short, are that respondent No.1 filed Civil Suit No.102A/2014 for eviction against respondent No. 2 on the ground of subletting and bona fide need for residential purposes. On 31/7/2015, judgment and decree were passed in favor of respondent No.1. It appears that appellant filed an application under Order 21 Rule 97 CPC, alleging that the suit for eviction was collusive and under the garb of a collusive suit, appellant is being dispossessed. Appellant claimed he is not a sub-tenant but is in possession of the property in his independent right. Respondent No. 1 had executed a rent agreement through his son, Deepak Puruswani, and handed over possession of the property in dispute for running a hospital. Accordingly, appellant has established a hospital in the name of Chiranjeev Hospital Services Private Limited, and respondent No.1 was receiving the rent through his son, Deepak, by account payee cheques. Respondent No. 2 was never in actual possession of the property in dispute and was never inducted by respondent No.1 as a sub-tenant. Since respondent No. 2 has a close relationship with respondent No. 1, therefore collusive suit was filed, and a collusive decree was obtained on 31/7/2015. Under the garb of subletting, respondent No. 1 is trying to dispossess appellant. The aforementioned application was dismissed by the trial court by order dated 15/11/2019 passed in MJC No.09 of 2016.

3. Being aggrieved by the said order, the appellant preferred RCA No. 217/2019, which too was dismissed by the Third District Judge, Gwalior, by judgment and decree dated 21/9/2021.

4. By order dated 25.02.2022, the second appeal has been admitted on the following substantial questions of law:

(i) Whether learned trial Court is justified in directing the appellant to lead evidence without framing any point for determination/issue in the matter?

(ii) Whether learned trial Court has caused serious prejudice to the appellant by closing the right to lead evidence and proceed further?

(iii) Whether learned appellate Court has committed serious error of law in not allowing application under Order 41 Rule 27 C.P.C.? and

(iv) Whether learned trial Court is justified in not deciding the application under Section 151 C.P.C. by which appellant keeping himself present in the Court and offered him to cross-examination and committed serious error of law?

5. Heard learned counsel for the parties.

6. From the order-sheets of the trial court, it appears that appellant preferred an application under Order 21 Rule 97 CPC on 4/1/2016. It was pleaded by appellant that in order to decide the application filed under Order 21 Rule 97 CPC, issues are to be framed. However, by order dated 19/9/2016, the trial court held that in case if it is required, only then the issues will be framed. Accordingly, appellant was directed to keep his witnesses present, and the case was fixed for 6/10/2016. On 6/10/2016, the witnesses of appellant were not present. However, appellant filed an application under Order 11 Rule 14 CPC read with Section 65 of the Evidence Act. Thereafter, the case was fixed for passing of order on the said application as well as for recording of evidence of appellant on 7/10/2016. On 7/10/2016, the Presiding Officer was on leave. Thereafter, by order dated 20/10/2016, the case was fixed for 8/11/2016 for recording of evidence. On 8/11/2016, the application filed by appellant under Order 11 Rule 14 CPC read with Section 65 of the Evidence Act was rejected, and last opportunity was given to appellant to lead his evidence & fixed the case for 9/11/2016. On 9/11/2016, time was granted to appellant to lead evidence, an