RAJINDER TIWARI versus KEDAR NATH (DECEASED) THR. LRS. & ORS.

Citation: [2019] 5 S.C.R. 881 · Decided: 28-03-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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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
[2019] 5 S.C.R. 881
881
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SUPREME COURT REPORTS
[2019]  5 S.C.R.
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 appe

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