Mohd. Sharif & Ors. v. Ibrahim & Ors.

HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. B.V. Thanvi for the petitioners. Mr. R.K. Thanvi for the respondent(s). BY THE COURT : In this writ petition filed under Article 226 and 227 of the Constitution of India, the petitioners have prayed for quashing order dated 28.07.2008 (Annex.-9), whereby, in the suit of eviction and arrears of rent filed by respondents No.1(a) and 1(c). In the suit, after filing written-statement, issues were framed on 03.12.1981 and amended subsequently thrice on

13.02.1997, 01.12.2000 and 20.04.2001. The petitioner- defendants filed an application under Order 18 Rule 3, read with Section 151, C.P.C., in which, it is prayed that affidavit of Ibrahim plaintiff has been filed in rebuttal in which the 2 fact of executing agreement on 08.07.1977 by Bismillah is stated but this fact was not disclosed in the suit filed by him. Thereafter, after amendment in the suit, the fact of agreement was disclosed, therefore, the said fact is after- thought and burden to prove the said fact is upon the plaintiff and he has already led his evidence and evidence of defendants has also been recorded. As such, in rebuttal the affidavit filed by the plaintiff on 17.01.2008 shall not be taken in evidence because the fact which is disclosed in the affidavit was not disclosed in the pleadings, therefore, this fact may be deleted from the affidavit. The application filed by the petitioner-defendants in the suit was rejected vide order dated 28.07.2008 by the trial Court and objection raised by the petitioners was rejected.

Learned counsel for the petitioners submits that the order impugned is not sustainable in law because in rebuttal no such affidavit can be taken on record, therefore, the order impugned may be quashed and application filed by the petitioners under Order 18 Rule 3, read with Section 151, C.P.C., in which, objection was raised with regard to filing affidavit of Ibrahim may be accepted and his affidavit may be ordered to be removed from the evidence. 3 Per contra, learned counsel appearing for the respondents submits that suit is pending since 1973 and for one or the other reason, the defendant-petitioner is making his all efforts to delay the suit and with regard to rejection of the petitioners' objection it is submitted that no illegality has been committed by the trial Court in passing the impugned order and if the petitioners are having any objection, then, they can raised the same at the time of final argument.