IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.32823283 OF 2019
(Arising out of S.L.P.(C) Nos.2029520296 of 2017)
Rajinder Tiwari ….Appellant(s)
Thr. L.Rs. & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
- Leave granted.
- These appeals are directed against the final
judgment and order dated 03.11.2016 passed by
the High Court of Delhi at New Delhi in R.S.A.
No.188 of 2010 whereby the High Court allowed the
RSA filed by the respondents herein and order dated
26.04.2017 in CM(Application) No.46865 of 2016 by
which the High Court dismissed the application for
rehearing of the second appeal filed by the
- A few facts need mention hereinbelow for the
disposal of the appeals, which involve a short point.
- The appellant is the plaintiff and the original
respondent (now represented by his legal
representatives) is the defendant in the civil suit out
of which these appeals arise.
- The appellant(plaintiff) filed Civil Suit No. 147
of 2007 against the original respondent(defendant)
in the Court of Senior Civil JudgecumRent
Controller(North East Dist.), Karkardooma Courts,
Delhi for permanent injunction in relation to the
- It is not in dispute that the defendant’s right
to file the written statement was closed by the
Senior Civil Judge with the result, the defendant
could not file his written statement and nor could
file any documentary evidence.
- The plaintiff then adduced his evidence. The
defendant, however, could only crossexamine the
plaintiff’s witnesses without his defence for want of
- By judgment/decree dated 01.02.2010, the
Senior Civil Judge decreed the plaintiff’s suit by
passing a decree for permanent injunction as
prayed by him. The defendant felt aggrieved and
filed first appeal before the Additional District
- By judgment dated 26.07.2010, the first
Appellate Court dismissed the appeal and upheld
the judgment and decree passed by the Senior Civil
- The defendant felt aggrieved and filed second
appeal in the High Court of Delhi. By order dated
03.11.2016, the High Court allowed the second
appeal, set aside the judgment of the first Appellate
Court and dismissed the plaintiff’s (appellant’s
herein) suit. Thereafter the plaintiff filed application
for rehearing of the second appeal but the same
was dismissed by order dated 26.04.2017. Against
both the orders, the appellant(plaintiff) has filed the
present appeals by way of special leave in this
- So, the short question, which arises for
consideration in these appeals, is whether the High
Court was justified in allowing the defendant’s
second appeal and was, therefore, justified in
dismissing the plaintiff’s (appellant’s herein) suit.
- Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow these appeals and while setting
aside the impugned orders, remand the case to the
Trial Court (Senior Civil Judge) for trying the civil
suit afresh on merits in accordance with law.
- In our considered opinion, the need to remand
the case to the Senior Civil Judge for trying the civil
suit afresh on merits has occasioned for more than
- First, we find that the trial in the suit has not
been done satisfactorily inasmuch as the defendant
was not afforded an adequate opportunity to file his
- Second, in the absence of any written
statement, the defendant could neither adduce
proper evidence nor file any documentary evidence
in support of his case.
- Third, the rights of the parties were, therefore,
decided by the two Courts (Trial Court and First
Appellate Court) by decreeing the suit and the High
Court by dismissing the suit on the basis of
insufficient evidence. In our view, it caused
prejudice to both the parties.
- Fourth, we do not find any justifiable reason to
deny the defendant of his right to file the written
statement. He was entitled to file the written
statement and to adduce oral and documentary
evidence for contesting the suit on merits.
- It is a settled law that all the contesting parties
to the suit must get fair opportunity to contest the
suit on merits in accordance with law. A decision
rendered by the Courts in an unsatisfactory
conducting of the trial of the suit is not legally
sustainable. It is regardless of the fact that in whose
favour the decision in the trial may go.
- It is for these reasons, we are of the view that
these appeals deserve to be allowed and matter is
remitted to the Trial Court for deciding the civil suit
afresh on merits in accordance with law.
- The respondents herein (legal representatives
of original defendant) are accordingly granted liberty
to file their written statement within one month
from the date of their appearance in the suit. The
Trial Court will thereafter frame issues arising in
the suit on the basis of the pleadings of the parties
and then allow the parties to adduce their evidence
in addition to the evidence already adduced. The
parties will also be allowed to file additional
documents, if they so wish.
- The Trial Court will decide the suit on the
basis of the pleadings and the evidence adduced by
the parties uninfluenced by any judgment passed
by the Courts in this Case on the earlier occasion.
- We, however, make it clear that we have not
expressed any opinion on the merits of the issue
while having formed an opinion to remand the case
to the Trial Court.
- Let the trial be completed within one year.
Parties to appear before the Senior Civil Judge
(North East District), Karkardooma Courts, Delhi on
- The appeals thus succeed and are accordingly
allowed. The impugned orders are set aside and the
suit is restored to its original file for being tried on
merits as indicated above.
.………...................................J. [ABHAY MANOHAR SAPRE]……………………………………….J.
March 28, 2019