DWARKA PRASAD Vs. DHARMESH

JUDGEMENT

(1.) The instant Civil Misc. Appeal has been filed by the defendant-appellant Dwarka Prasad assailing the judgment and decree dtd. 26/3/2019 passed by the learned Additional Sessions Judge No.2 Aburoad, District Sirohi in Civil Appeal No.24/2018 (11/2016) whereby the learned Appellate Court set aside the judgment and decree dtd. 20/9/2016 passed by the learned Civil Judge, Aburoad in Civil Original Suit No.41/2012 and remanded the matter to the learned trial Judge with a direction to proceed with the same in accordance with law.

(2.) The skeletal material facts necessary for the purpose of deciding the instant appeal are that the plaintiff-respondent had filed a suit against the defendant-appellant for eviction and recovery of rent. The defendant-appellant filed a written statement denying the plaintiff as owner of the property-in-question besides other specific contentions. On the basis of pleadings of the parties, the learned trial court framed the issues. The learned trial Judge on its own framed an issue as to whether there was a relationship of owner and tenant in between the parties. The plaintiff-respondent filed an application under Order 7 Rule 14 (3) of the CPC and prayed for taking on record photostat copies of the Will, counter copy of rent receipt, rent note of Gavari Devi, adoption deed (Godnama) and copy of 'Patta' of the disputed property. The learned trial court allowed the application of the plaintiff-respondent filed under Order 7 Rule 14 (3) CPC vide order dtd. 16/11/2013. On 10/7/2014, the plaintiff-respondent submitted an affidavit in the form of examination-in chief, upon which, the defendant-appellant moved an application under Order 6 Rule 17 of the CPC for making amendment in the written statement, which was accepted by the learned trial Judge vide order dtd. 20/11/2014. The plaintiffrespondent filed an application under Order 8 Rule 9 of the CPC along with the format of counter reply, which remained pending before the learned trial court. At this juncture, an application under Order 11 Rule 12 of the CPC was submitted at the behest of the defendant-appellant with a prayer to direct the plaintiffrespondent to produce the original Will, 'Patta', rent deed and original receipt of the rent in the court. Vide order dtd. 21/7/2015, the learned trial court allowed the said application and directed the plaintiff-respondent to produce the original Will, 'Patta', rent deed and original receipt of the rent on record. It is worthwhile to mention here that after passing of the order dtd. 21/7/2015, the matter got adjourned at the request of defendant-appellant on the ground of filing reply to the plaintiffrespondent's application under Order 8 Rule 9 of the CPC as well as at the request of the plaintiff-respondent for producing the original documents on record. On 4/11/2015, the plaintiffrespondent preferred another application averring therein that prior to filing of the suit, the original Will and sale deed were mortgaged with the Branch of SBBJ, Aburoad as the same were taken in hypothecation against the loan account, therefore, the documents may be summoned from the Bank. The matter got adjourned on six different occasions for want of reply to the application filed by the plaintiff-respondent. However, on 24/5/2016, the defendant-appellant moved another application under Order 11 Rule 21 r/w Sec. 151 of the CPC with a request to reject the suit filed by the plaintiff-respondent on account of his failure to produce the documents on record. The learned trial Judge allowed the application of the defendant-appellant filed under Order 11 Rule 21 r/w Sec. 151 of the CPC and dismissed the suit filed by the plaintiff-respondent vide judgment and decree dtd. 20/9/2016.

(3.) Aggrieved by the judgment and decree dated 20.09.20216, the plaintiff-respondent preferred an appeal before the learned Additional Sessions Judge No.2, Aburoad for setting aside the same. After hearing the counsel for the parties, learned Appellate Court vide its judgment and decree dtd. 26/3/2019 allowed the appeal while setting aside the judgment and decree dtd. 20/9/2016 and the matter was remanded back to the learned trial court for re-registration to its original number and then to proceed further in accordance with the procedure established by law. The said judgment and decree dtd. 26/3/2019 has been challenged by the defendant-appellant before this Court by way of filing the instant appeal.