Omwati and Another Omwati and Another v. Kamla and Others Kamla and Others
Case Details
CR-1731-2025 (O&M) (O&M) -1- - IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH AT CHANDIGARH -.- CR-1731-2025 (O&M) CR Reserved Reserved on :- 08.08.2025 Pronounced on:-11.08.2025 Pronounced on: Omwati and Another Omwati and Another ....Petitioners VERSUS Kamla and Others Kamla and Others ....Respondents MANDEEP PANNU CORAM : HON'BLE MS. JUSTICE MANDEEP PANNU CORAM : HON'BLE M Mr. Amit Jain, Advocate for the appellants. Present: Mr. Amit Jain, Advocate for the appellants. Mr. Amit Jain, Advocate for the appellants. Mr. Lokesh Sinhal, Advocate and Mr. Lokesh Sinhal, Advocate and Mr. Sukhandeep Singh, Advocate for respondent Nos. 1 and 2. Mr. Sukhandeep Singh, Advocate for respondent Nos. 1 and 2. Mr. Sukhandeep Singh, Advocate for respondent Nos. 1 and 2. MANDEEP PANNU J. MANDEEP PANNU -.- 1. The present revision petition has been filed by the petitioners The present revision petition has been filed by the petitioners The present revision petition has been filed by the petitioners The present revision petition has been filed by the petitioners (Annexure P- challenging the correctness of the impugned order dated 21.08.2024 (Annexure P challenging the correctness of the impugned order dated 21.08.2024 challenging the correctness of the impugned order dated 21.08.2024 contesting passed by the learned trial Court, whereby the application moved by contesting passed by the learned trial Court, whereby the application moved by 11) passed by the learned trial Court, whereby the application moved by
Facts
respondent Nos. 1 and 2/defendant Nos. 1 and 2 respondent Nos. 1 and 2 (hereinafter referred to as defendant Nos. 1 and 2 (hereinafter referred to as for exclusion of ‘respondent Nos. 1 and 2’) for exclusion of for exclusion of ‘respondent Nos. 1 and 2’) the affidavits filed by the affidavits filed by the affidavits filed by petitioners/proforma defendant Nos. 3 and 4 (hereinafter referred to as the orma defendant Nos. 3 and 4 (hereinafter referred to as the and 4 (hereinafter referred to as the ‘petitioners’) in their examination chief was allowed. ) in their examination-in-chief was allowed. 2. In order to appreciate the controversy in its correct perspective, it In order to appreciate the controversy in its correct perspective In order to appreciate the controversy in its correct perspective In order to appreciate the controversy in its correct perspective , which is would be apposite to notice the written statement filed by petitioners, which is would be apposite to notice the written statement filed by petitioners would be apposite to notice the written statement filed by petitioners 4. Perusal of the same reveals that petitioners placed on record as Annexure P-4. Perusal of the same reveals that petitioners 4. Perusal of the same reveals that petitioners placed on record as Annexure P have admitted the claim of the plaintiff Satyajeet (proforma/respondent no.3- tted the claim of the plaintiff- Satyajeet (proforma/respondent no.3 Satyajeet (proforma/respondent no.3 except for denying that they are colluding with defendant Nos. 1 and 2. In herein) except for denying that they are colluding with defendant Nos. 1 and 2. In except for denying that they are colluding with defendant Nos. 1 and 2. In except for denying that they are colluding with defendant Nos. 1 and 2. In the end, they have prayed that plead is correct and admitted and that they have they have prayed that pleading is correct and admitted and that they have is correct and admitted and that they have no objection in case the present case is decreed as prayed for. Since the petitioners no objection in case the present case is decreed as prayed for. Since the petitioners no objection in case the present case is decreed as prayed for. Since the petitioners no objection in case the present case is decreed as prayed for. Since the petitioners TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document CR-1731-2025 (O&M) (O&M) -2- - had admitted the claim of the plaintiff tted the claim of the plaintiff-Satyajeet
Legal Reasoning
there is no dispute that they are Satyajeet, there is no dispute that they are contesting defendants. non-contesting defendants. 3. dmitted fact between the parties that after the close of the oral It is an admitted fact between the parties that after the close of the oral dmitted fact between the parties that after the close of the oral It is an a evidence of the plaintiff/respondent No.3 on 18.01.2023, the case was adjourned to evidence of the plaintiff/respondent No.3 on 18.01.2023, the case was adjourned evidence of the plaintiff/respondent No.3 on 18.01.2023, the case was adjourned evidence of the plaintiff/respondent No.3 on 18.01.2023, the case was adjourned documentary evidence and on 08.02.2023, plaintiff/respondent 08.02.2023 for his documentary evidence and on 08.02.2023, plaintiff/respondent documentary evidence and on 08.02.2023, plaintiff/respondent 08.02.2023 for his No.3 closed his documentary his documentary evidence and the case was adjourned to 29.03.2023 evidence and the case was adjourned to 29.03.2023 for defendant evidence, on which date the oral evidence of defendant for defendant evidence, s/respondents on which date the oral evidence of defendants/respondents adjourned to was closed after examining one DW and the case was adjourned to was closed after examining one DW and the case No. 1 and 2 was closed after examining one DW and the case No. 1 and 2 and 22.05.2024 for documentary evidence on behalf of defendants No. 1 and 2 and 22.05.2024 for documentary evidence on behalf 22.05.2024 for documentary evidence on behalf defendants No.3 and 4 and defendant defendant evidence on behalf of proforma defendants No.3 and 4 and defendant defendants No.3 and 4 and defendant defendant evidence on behalf of No.6 & 7. 4. mwati Thereafter petitioner No.1/proforma defendant No.3-Omwati Thereafter petitioner No.1/proforma def Thereafter petitioner No.1/proforma def furnished affidavit in examination nished affidavit in examination-in-chief on 22.05.2024. oner chief on 22.05.2024. Similarly, petitioner No.2/proforma defendant defendant No.4 furnished affidavit in examination chief on the No.4 furnished affidavit in examination-in-chief on the same date. The petitioners/proforma defendants No.3 and 4 moved an application same date. The petitioners/proforma defendants No.3 and 4 moved an application same date. The petitioners/proforma defendants No.3 and 4 moved an application same date. The petitioners/proforma defendants No.3 and 4 moved an application for appointment of handwriting and fingerprint expert to verify/compare signatures for appointment of handwriting and fingerprint expert to verify/compare signatures for appointment of handwriting and fingerprint expert to verify/compare signatures for appointment of handwriting and fingerprint expert to verify/compare signatures of petitioners/proforma 3 and 4 over alleged affidavit dated proforma defendants No. 3 and 4 over alleged affidavit dated 3 and 4 over alleged affidavit dated No. 1 and 2 have submitted in their 20.06.2006 pleading therein that defendants No. 1 and 2 have submitted in their No. 1 and 2 have submitted in their 20.06.2006 pleading therein that defendant affidavits that proforma defendant No.3 and 4 had issued this affidavit dated that proforma defendants No.3 and 4 had issued this affidavit dated No.3 and 4 had issued this affidavit dated electricity connection is transferred in the name of 20.06.2006 for no objection if electricity connection is transferred in the name of electricity connection is transferred in the name of 20.06.2006 for no objection if defendant No.1. defendant No.1. 5. Reply to application was also filed Reply to No. 1 and filed by contesting defendants No. 1 and 2/respondents No.1 respondents No.1 and 2. Thereafter, on 10.07.2024, contesting on 10.07.2024, contesting defendants No. No. 1 and 2 /respondents No.1 and 2 filed respondents No.1 and 2 filed an application filed by application for excluding affidavits filed by petitioners/proforma defendant 3 and 4 alleging therein that since they have forma defendants No. 3 and 4 alleging therein that since they have 3 and 4 alleging therein that since they have TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document CR-1731-2025 (O&M) (O&M) -3- - written statement admitting the claim of the plaintiff they were under an filed an written statement admitting the claim of the plaintiff they were under an written statement admitting the claim of the plaintiff they were under an written statement admitting the claim of the plaintiff they were under an obligation to give their evi give their evidence before evidence of conte defendants No.1 dence before evidence of contesting defendants No.1 and 2/respondents No. 1 and respondents No. 1 and 3 but since they never came forward to their 3 but since they never came forward to exercise their right, therefore, they have no right to file their affidavits at this stage, just to fill up right, therefore, they have no right to file their affidavits at this stage, just to fill up right, therefore, they have no right to file their affidavits at this stage, just to fill up right, therefore, they have no right to file their affidavits at this stage, just to fill up their case. the lacuna in their case. 6. Reply to the said application was filed Reply to the said appl dated tion was filed. Vide impugned order dated 21.08.2024, the said appl the said application was allowed by the learne tion was allowed by the learned Trial Court. 7. Learned counsel for the petitioners has, in the first instance, argued Learned counsel for the petitioners has, in the first instance, argued Learned counsel for the petitioners has, in the first instance, argued Learned counsel for the petitioners has, in the first instance, argued hich of the defendants should begin leading evidence is not that the issue as to which of the defendants should begin leading evidence is not hich of the defendants should begin leading evidence is not that the issue as to w specifically dealt with in Order XVIII of the Code of Civil Procedure, 1908 (for specifically dealt with in Order XVIII of the Code of Civil Procedure, 1908 ( specifically dealt with in Order XVIII of the Code of Civil Procedure, 1908 ( specifically dealt with in Order XVIII of the Code of Civil Procedure, 1908 ( ). It is submitted that a defendant supporting the case of the plaintiff is short ‘CPC’). It is submitted that a defendant supporting the case of the plaintiff is ). It is submitted that a defendant supporting the case of the plaintiff is ). It is submitted that a defendant supporting the case of the plaintiff is not debarred either from leading evidence, and that no party either expressly or impliedly from leading evidence, and that no party from leading evidence, and that no party to the suit can be denied the right to tender evidence. to the suit can be denied the right to tender evidence. to the suit can be denied the right to tender evidence. 8. It is further argued by the learned counsel for the petitioners It is further argued that the by the learned counsel for the petitioners that the but to Court, being the master of the proceedings, is not to act as a passive agent but to Court, being the master of the proceedings, is not to act a Court, being the master of the proceedings, is not to act a counsel, it was the duty of guide the trial of the suit. Therefore, according to the counsel, it was the duty of guide the trial of the suit. Therefore, according to guide the trial of the suit. Therefore, according to the trial Court to invite the petitioners/consenting defendant the trial Court to invite the to lead evidence first. consenting defendants to lead evidence first. Reliance has been placed upon Jhumpa Bewa & Ors. v. Saha D Reliance has been placed ev Rout & Ors., Jhumpa Bewa & Ors. v. Saha Dev Rout & Ors., , wherein the Orissa High Court held that defendants AIR 1987 Orissa 209, wherein the Orissa High Court held that defendants , wherein the Orissa High Court held that defendants AIR 1987 Orissa 209 supporting the plaintiff’s case should lead evidence prior to those opposing it, and supporting the plaintiff’s case should lead evidence prior to those opposing it, and supporting the plaintiff’s case should lead evidence prior to those opposing it, and supporting the plaintiff’s case should lead evidence prior to those opposing it, and that the Court should guide the parties in this regard. that the Court should guide the parties in this regard. that the Court should guide the parties in this regard. 9. I have considered the submissions made by lear I have considered the s ned counsel for the ubmissions made by learned counsel for the petitioners and gone through the record. petitioners and gone through the record 10. It is indeed settled that no party to a suit can be denied the right to It is indeed settled that no party to a suit can be denied the right to It is indeed settled that no party to a suit can be denied the right to It is indeed settled that no party to a suit can be denied the right to tender evidence. The narrow question, however, is whether a consenting defendant tender evidence. The narrow question, however, is whether a consenting defendant tender evidence. The narrow question, however, is whether a consenting defendant tender evidence. The narrow question, however, is whether a consenting defendant TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document CR-1731-2025 (O&M) (O&M) -4- - admitting the plaintiff’s case can lead evidence after the contesting defendants plaintiff’s case, can lead evidence after the contesting defendants can lead evidence after the contesting defendants have concluded theirs. have concluded theirs. 11. Order XVIII CPC does not draw any express distinction between a Order XVIII CPC does not draw any express distinction between a Order XVIII CPC does not draw any express distinction between a Order XVIII CPC does not draw any express distinction between a contesting and a consenting defendant. However, judicial pronouncements have contesting and a consenting defendant. However, judicial pronouncements have contesting and a consenting defendant. However, judicial pronouncements have contesting and a consenting defendant. However, judicial pronouncements have hat where a defendant supports the plaintiff’s case, such a party consistently held that where a defendant supports the plaintiff’s case, such a party hat where a defendant supports the plaintiff’s case, such a party consistently held t should lead evidence immediately after the plaintiff, so that the contesting should lead evidence immediately after the plaintiff, so that the contesting should lead evidence immediately after the plaintiff, so that the contesting should lead evidence immediately after the plaintiff, so that the contesting defendants are afforded a fair opportunity to lead rebuttal evidence. defendants are afforded a fair opportunity to lead rebuttal evidence. defendants are afforded a fair opportunity to lead rebuttal evidence. 12. In Kirti v. Anoop Singh (deceased) thr In Kirti v. Anoop Singh (deceased) thr ough LRs & Ors., 2023 (2) Kirti v. Anoop Singh (deceased) through LRs & Ors., 2023 (2) RCR (Civil) 591, it was held that once a defendant admits RCR (Civil) 591 the case of the plaintiff , it was held that once a defendant admits the case of the plaintiff and supports her then, she is her then, she is essentially claiming the same relief as is claimed by essentially claiming the same relief as is claimed by the Court to lead plaintiff. Consequently, that defendant should have moved the Court to lead plaintiff. Consequently, that defendant should have moved the plaintiff. Consequently, that defendant should have moved If the petitioner evidence before the contesting defendants were permitted to do so. If the petitioner evidence before the contesting defendants were permitted to do so. evidence before the contesting defendants were permitted to do so. contesting defendants would be is permitted to lead evidence at this stage, the contesting defendants would be is permitted to lead evidence at this stage, the is permitted to lead evidence at this stage, the evidence. deprived of the opportunity to counter evidence. deprived of the opportunity to counter 13. The ratio of above said judgment The ratio of fully applies to the present facts. said judgment fully applies to the present facts. ) cannot The judgment of the Hon’ble Orissa High Court in Jhumpa Bewa (supra) cannot The judgment of the Hon’ble Orissa High Court in The judgment of the Hon’ble Orissa High Court in
Decision
be applied in view of the above-said decision in be applied in view of the and in view of in Kirti’s case (supra) and in view of the contrary decision of Division Bench of this Court the contrary decision of Harminder Pal & Anr. v. his Court in Harminder Pal & Anr. v. , which authoritatively held that a Pritam Das & Ors., 1990 (2) RCR (Rent) 518, which authoritatively held that a Pritam Das & Ors., 1990 (2) RCR (Rent) 518 Pritam Das & Ors., 1990 (2) RCR (Rent) 518 consenting defendant cannot lead evidence after the contesting defendants have consenting defendant cannot lead evidence after the contesting defendants have consenting defendant cannot lead evidence after the contesting defendants have consenting defendant cannot lead evidence after the contesting defendants have ter the close of the concluded theirs, though such a defendant may lead evidence after the close of the concluded theirs, though such a defendant may lead evidence af concluded theirs, though such a defendant may lead evidence af plaintiff’s case and before the contesting defendants commence theirs. The plaintiff’s case and before the contesting defendants commence theirs. The plaintiff’s case and before the contesting defendants commence theirs. The plaintiff’s case and before the contesting defendants commence theirs. The decision of the larger Bench carries greater binding value. decision of the larger Bench carries greater binding value. decision of the larger Bench carries greater binding value. 14. It is next argued by learned counsel for the petitioners that the is next argued by learned counsel for the petitioners that the next argued by learned counsel for the petitioners that the application leading to the impugned order was an afterthought, intended to defeat application leading to the impugned order was an afterthought, intended to defeat application leading to the impugned order was an afterthought, intended to defeat application leading to the impugned order was an afterthought, intended to defeat TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document CR-1731-2025 (O&M) (O&M) -5- - their rights, as the petitioners had already filed affidavits on 22.05.2024 along with their rights, as the petitioners had already filed affidavits on 22.05.2024 along with their rights, as the petitioners had already filed affidavits on 22.05.2024 along with their rights, as the petitioners had already filed affidavits on 22.05.2024 along with ment of a handwriting and fingerprint expert. an application for appointment of a handwriting and fingerprint expert. an application for appoint 15. This contention is without merit. The record reveals that the This contention is without merit. The record reveals that the This contention is without merit. The record reveals that the This contention is without merit. The record reveals that the application for appointment of an expert was filed on 22.05.2024, the reply thereto application for appointment of an expert was filed on 22.05.2024, the reply thereto application for appointment of an expert was filed on 22.05.2024, the reply thereto application for appointment of an expert was filed on 22.05.2024, the reply thereto ion for exclusion of the was filed on 10.07.2024, and on the same date, the application for exclusion of the was filed on 10.07.2024, and on the same date, the applicat was filed on 10.07.2024, and on the same date, the applicat affidavits of the proforma defendants was moved. The timing and sequence of affidavits of the proforma defendants was moved. The timing and sequence of affidavits of the proforma defendants was moved. The timing and sequence of affidavits of the proforma defendants was moved. The timing and sequence of events clearly show that the application cannot be termed an afterthought to defeat events clearly show that the application cannot be termed an afterthought to defeat events clearly show that the application cannot be termed an afterthought to defeat events clearly show that the application cannot be termed an afterthought to defeat the petitioners’ rights. the petitioners’ rights. 16. It is is further contended that the plea con cerning the affidavit dated further contended that the plea concerning the affidavit dated 20.05.2006 allegedly issued by the petitioners was never raised in the pleadings 20.05.2006 allegedly issued by the petitioners was never raised in the pleadings 20.05.2006 allegedly issued by the petitioners was never raised in the pleadings 20.05.2006 allegedly issued by the petitioners was never raised in the pleadings No. 1 and 2, and was introduced for the first time in the evidence of defendants No. 1 and 2 and was introduced for the first time in the evidence of defendant and was introduced for the first time in the evidence of defendant therefore, the consenting consenting defendants No. 3 and 4 left with no othe r option but to defendants No. 3 and 4 left with no other option but to No.1 and 2 by examining the handwriting expert lead the evidence after defendants No.1 and 2 by examining the handwriting expert No.1 and 2 by examining the handwriting expert lead the evidence after in order to disprove the alleged affidavit. Similarly, the plaintiffs could not lead in order to disprove the alleged affidavit. Similarly, the plaintiffs could not lead in order to disprove the alleged affidavit. Similarly, the plaintiffs could not lead in order to disprove the alleged affidavit. Similarly, the plaintiffs could not lead in the evidence on the alleged affidavit as this fact was introduced firtst time in the evidence on the alleged affidavit as this fact was introduced firtst time evidence on the alleged affidavit as this fact was introduced firtst time evidence of defendants No.1 and 2 evidence of defendant 17. This argument is also unfounded. Perusal of the written statement This argument is also unfounded. Perusal of the written statement This argument is also unfounded. Perusal of the written statement This argument is also unfounded. Perusal of the written statement No. 1 and 2 reveals that in para 7, it was specifically alleged filed by defendants No. 1 and 2 reveals that in para 7, it was specifically alleged No. 1 and 2 reveals that in para 7, it was specifically alleged filed by defendant ed in 2006 to transfer an that the plaintiff, along with defendant No. 3, had consented in 2006 to transfer an that the plaintiff, along with defendant No. 3, had consent that the plaintiff, along with defendant No. 3, had consent agricultural electricity connection from the name of the plaintiff’s grandfather to agricultural electricity connection from the name of the plaintiff’s grandfather to agricultural electricity connection from the name of the plaintiff’s grandfather to agricultural electricity connection from the name of the plaintiff’s grandfather to that of Kamla Devi. This averment directly relates to the disputed affidavit of the that of Kamla Devi. This averment directly relates to the disputed affidavit of the that of Kamla Devi. This averment directly relates to the disputed affidavit of the that of Kamla Devi. This averment directly relates to the disputed affidavit of the same year. The plaintiffs were, therefore, fully aware of the same year. The controversy and could were, therefore, fully aware of the controversy and could have led evidence at the appropriate stage. They have led evidence at the appropriate stage. failed to do so, and are now They failed to do so, and are now attempting to bring such evidence through petitioners/ attempting to bring such evidence through consenting defendants after petitioners/consenting defendants after itted. the contesting defendants have closed their evidence, which cannot be permitted. the contesting defendants have closed their evidence, which cannot be perm the contesting defendants have closed their evidence, which cannot be perm TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document CR-1731-2025 (O&M) (O&M) -6- - 18. Thus, the law is very much clear that Thus, t a consenting defendant stands on that a consenting defendant stands on substantially the same footing as the plaintiff regarding the order of evidence. substantially the same footing as the plaintiff regarding the order of evidence. substantially the same footing as the plaintiff regarding the order of evidence. substantially the same footing as the plaintiff regarding the order of evidence. Permitting such a defendant to lead evidence after contesting defendants have Permitting such a defendant to lead evidence after contesting defendants have Permitting such a defendant to lead evidence after contesting defendants have Permitting such a defendant to lead evidence after contesting defendants have would amount to depriving the latter of an opportunity to rebut and closed theirs would amount to depriving the latter of an opportunity to rebut and would amount to depriving the latter of an opportunity to rebut and would amount to depriving the latter of an opportunity to rebut and would cause serious prejudice. The sequence of evidence is designed to preserve would cause serious prejudice. The sequence of evidence is designed to preserve would cause serious prejudice. The sequence of evidence is designed to preserve would cause serious prejudice. The sequence of evidence is designed to preserve procedural fairness, not to facilitate tactical advantage or cure evidentiary procedural fairness, not to facilitate tactical advantage or cure evidentiary procedural fairness, not to facilitate tactical advantage or cure evidentiary procedural fairness, not to facilitate tactical advantage or cure evidentiary deficiencies. CONCLUSION CONCLUSION 19. In view of the foregoing discussion, I find no illegality or perversity in In view of the foregoing discussion, I find no illegality or perversity in In view of the foregoing discussion, I find no illegality or perversity in In view of the foregoing discussion, I find no illegality or perversity in the impugned order of the learned trial Court. The application moved on behalf of the impugned order of the learned trial Court. The application moved on behalf of the impugned order of the learned trial Court. The application moved on behalf of the impugned order of the learned trial Court. The application moved on behalf of proforma defendant Nos. 1 and 2 for exclusion of the affidavits filed by petitioners/proforma defendant Nos. 1 and 2 for exclusion of the affidavits filed by defendant Nos. 1 and 2 for exclusion of the affidavits filed by 3 and 4 was rightly allowed. defendant Nos. 3 and 4 was rightly allowed. 20. 21. Accordingly, the present revision petition is dismissed. Accordingly, the present revision petition is dismissed Accordingly, the present revision petition is dismissed Pending application(s), if any, also stand disposed of. Pending application(s), if any, also stand disposed of. Pending application(s), if any, also stand disposed of. 2025 August 11, 2025 tripti (MANDEEP PANNU) JUDGE Whether speaking/non-speaking : Speaking speaking : Speaking Whether speaking/non : Yes/No : Yes/No Whether reportable Whether reportable TRIPTI SAINI 2025.08.21 11:12 I attest to the accuracy and integrity of this document