Imbalance of a case = when defendant not filed written statment and participated in cross examination of plaintiff’s witness = 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 one reason. 14. 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 written statement. 15. 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. 5 16. 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. 17. 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. 18. 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. 6 19. 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 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.

REPORTABLE
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)
VERSUS
Kedar Nath(Deceased)
Thr. L.Rs. & Ors. ….Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

  1. Leave granted.
  2. 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.
    1
    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
    appellant herein.
  3. A few facts need mention hereinbelow for the
    disposal of the appeals, which involve a short point.
  4. 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.
  5. 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
    suit property.
    2
  6. 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.
  7. The plaintiff then adduced his evidence. The
    defendant, however, could only cross­examine the
    plaintiff’s witnesses without his defence for want of
    written statement.
  8. 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
    Judge.
  9. By judgment dated 26.07.2010, the first
    Appellate Court dismissed the appeal and upheld
    3
    the judgment and decree passed by the Senior Civil
    Judge.
  10. 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
    Court.
  11. 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.
    4
  12. 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.
  13. 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
    one reason.
  14. 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
    written statement.
  15. 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.
    5
  16. 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.
  17. 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.
  18. 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.
    6
  19. 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.
  20. 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.
  21. 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.
    7
  22. 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.
  23. Let the trial be completed within one year.
    Parties to appear before the Senior Civil Judge
    (North East District), Karkardooma Courts, Delhi on
    02.04.2019.
  24. 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.
    [DINESH MAHESHWARI]
    New Delhi;
    March 28, 2019
    8