Writ Petition No. 2782 of 2012 · Rajasthan High Court

Mr. Mitesh Sharma, for petitioner (defendant) The matter was heard finally at the admission stage itself. This writ petition filed under Articles 226 & 227 of the Constitution of India by the petitioner (defendant), is directed against the order dated 13.2.2012 passed by Additional District Judge (Fast Track) No.3, Jaipur Mahanagar, in Civil Suit No.10/2007, whereby his application filed under O.16 R.2 of the Code of Civil Procedure (hereafter referred to as 'the Code'), had been dismissed. Briefly stated facts of the case are that the plaintiff (respondent) had filed a suit for recovery of Rs.21 lac on the basis of bill no.459 and four cheques. The defendant filed written-statement and denied purchasing anything from plaintiff company through bill no.459. According to him there were business transactions between the petitioner and plaintiff (respondent) and these four cheques were issued as security.

His contention was that the notice with regard to dishonour of cheques was sent on the wrong address as the correct address of defendant (petitioner) was 2 ठ 18 Jawahar Nagar. In support of his contentions he filed the copy of rent agreement showing that his address was 2 ठ 18 Jawahar Nagar and not 3 द 22 Jawahar Nagar, on which notice was sent. 2 On the basis of pleadings of both the parties, issues were framed. Both the parties filed their oral as well as documentary evidence. It is thereafter that an application was filed under O.16 R.6 of the Code seeking summoning the landlady to produce the original rent agreement in order to prove his address as 2 ठ 18 Jawahar Nagar. The landlady Vimlesh Jain appeared and deposed that the original rent agreement entered into between the petitioner and herself, had been destroyed. Thereafter petitioner sought permission to lead secondary evidence to prove said rent agreement, which was allowed, where-after he moved another application under O.16 R.2 of the Code praying for re-summoning Vimlesh Jain to prove said rent agreement.

This application was vehemently opposed by the respondent and the learned trial court, after hearing both the parties, dismissed said application vide impugned order dated 18.11.2011, observing therein that the petitioner had prayed vide his application under O.16 R.6 of the Code to summon Smt. Vimlesh Jain, who appeared and proved the rent note as Exhibit A-1 and that the petitioner has again prayed to summon her to prove the document which has already been exhibited. Closing petitioner's evidence, the case was posted for final arguments. It was also observed by learned trial court that said order had earlier been assailed before this court by way of writ petition no.17021/2011, which was withdrawn on 9.12.2011 with liberty to file fresh application to summon Vimlesh Jain to prove the contents of rent note Exhibit A-1. 3 The petitioner, thereafter, moved application in question on

16.12.2011 and prayed for summoning Vimlesh Jain again for evidence. Learned trial court rejected the application specifically observing that the same request had already been dismissed on

18.11.2011, which has attained finality. It appears that the petitioner (defendant) time and again, by moving one or the other application, is lingering the matter and the suit filed in 2007 for recovery of 21 lac is pending at the stage of defence evidence and as is clear from the trial court's order-sheet that the defendant moved another application under O.11 R.14 of the Code on that day itself. The order passed by learned trial court cannot be said to be faulty so as to warrant interference of this court in exercise of extraordinary jurisdiction because the rent-note had already been exhibited by Vimlesh Jain as A-1 and contents of documents need not be proved. On the basis of discussion made herein-above, the writ petition is devoid of merit, hence dismissed with direction to the trial court to complete the trial within three months from the date of receipt of this order. The stay application also stands disposed. (Dr. Meena V. Gomber) J. [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS