KAILASH CHANDRA Vs. RATAN PRAKASH

JUDGEMENT

(1.) THIS is an application of the plaintiff for revision of the order dated 10th December, 1969 rejecting his application to withdraw a statement made by his counsel under Order 10, Rule 2, Civil P. C. The material facts are as follows:-

(2.) THE plaintiff applicant filed a suit for ejectment of the defendants from the pre mises in question and for recovery of arrears of rent and damages, inter alia, alleg ing that the defendant No. 1 was the tenant of the premises and the defendant No. 2 was a sub-tenant. He alleged that defendant No. 1 had illegally and without the permission of the plaintiff sub-let the said pre mises to the defendant No. 2. Both the de fendants filed their separate written statement The defendant No. 1 in his written statement pleaded that after about 1 or 2 years of the taking of the shop in suit on rent an agree ment wax arrived at between defendant No. 1 and defendant No. 2 who was working at the shop as one of the employees of defendant No. 1 under which the tenancy of the shop in suit, the establishment and the business running therein were to belong to defendant No. 1 but the work at the shop was handed over to the defendant No. 2 who was to pay to the defendant No. 1 charges for each gar ment made or tailored at the shop according to the agreed rates. He further alleged that the defendant No. 1 sub-let the shop in suit to the defendant No. 2. In this written state ment the defendant No. 2 alleged that he Was not sub-tenant of the defendant No. 1 and supported the case set up by the defend ant No. 1. On 26th May, 1967, the trial Court after framing the issues recorded the statement of the counsel for the plaintiff under Order 10, Rule 2, Civil P. C. The learned counsel for the plaintiff stated, inter alia, that the tenancy was created in 1966 in favour of the defendant No. 1 and the de fendant No. 1 sub-let the portion to the de fendant No. 2 about 5, 6 months prior to the issue of notice. On 2nd December, 1969, an application 70-A-1 was filed by the plaintiff for withdrawing the said statement. It ap pears that when the application was taken up on 2nd December, 1969 the learned coun sel for the parties agreed that the said ap plication should be decided at the time of the final disposal of the suit. The Court below therefore fixed 10th December, 1969 for final hearing. However, on 8th December, 1969, the defendant filed an objection to the said application of the plaintiff dated 2-12-1969 and by another application he prayed that the application of the plaintiff and the objections thereon should be disposed of be fore the hearing of the suit. The Court below, therefore, heard the parties on the application 70-A of the plaintiff and the ob jections thereon filed by the defendant and opposed the impugned order.

(3.) THE scope of the provisions of Rules 1 and 2 of Order 10 of the Code of Civil Procedure is quite distinct Rule 1 of Order 10 makes provision for ascertainment whether the allegations in the pleadings are admitted or denied. It provides that at the first hearing of the suit, the Court shall ascer tain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written state ment and as are not expressly or by neces sary implication admitted or denied by the party against whom they are made. Rule 2, however, deals with the oral examination of the party or any person able to answer any material questions relating to the suit by whom such party or his pleader is accom panied. Statement of the counsel for the party may be taken under Rule 1, but there is no provision for recording the statement of the counsel for the party under Rule 2. A statement recorded under Rule 1 or Rule 2, however, does not become part of the plead ing of the party. Under Rule 3, it forms part of the record. A statement made under Rule 1 is conclusive against the party making the statement whereas a statement made under Rule 2 being part of the record is liable to be considered along with the other evidence and circumstances of the case. It may, how ever, happen that in a particular case and in particular circumstances an inaccuracy in the statement may creep in. The question which arose for determination in the present case was whether it is open to a party to withdraw the statement which was alleged to have, been made in a particular circum stance resulting in inaccuracy. In the case of Prithvi Chand v. Sukhraj Rai, 1940 FCR 75 = (AIR 1940 FC 25) it was observed:-