Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + % CM(M) No.1060/2014 1st December , 2014 M/S PASUPATI SPINNING AND WEAVING MILLS LTD. & ANR. ......Petitioners. Through: Mr. Navin Chawla, Adv. Mr. Aditya V. Singh and Mr. Anurup Narula, Advocates. VERSUS SMT. NITI JAIN & ORS. Through: ...... Respondents Mr. Rahul Shukla, Adv. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 21.10.2014 by which the trial court has directed the petitioners/defendants to lead evidence first.
2. At the outset I must mention that powers under Article 227 of the Constitution of India are extraordinary and discretionary powers and are not meant to be exercised unless there is a grave prejudice or injustice by the trial court passing an order. Ordinarily, therefore original courts which are seized of the matter have powers to pass such orders which are otherwise in accordance with law, more so in the facts of the present case where the impugned order simply follows an earlier order passed in the suit by a learned Single Judge of this Court when the suit was pending in the original side of this Court and whereafter on account of change of pecuniary jurisdiction, the suit was transferred to the District Courts.
3. The subject suit is a suit for recovery of possession, damages etc alleging tenancy of the present petitioner no.1, and in which suit issues were framed by learned Single Judge of this Court on 5.2.2013. By the same order the court ordered the petitioners/defendants to lead evidence first because the execution of the lease deeds was admitted by the petitioners and therefore it is the petitioners who had to show as to why the lease deeds executed by them were not binding.
4. I do not find any illegality or perversity in the impugned order because once the order dated 5.2.2013 became final, by subsequent application the finality of that order directing the petitioners/defendants to lead evidence first cannot be disturbed.
5. Learned counsel for the petitioners very vehemently argued that subsequently on 22.3.2013 the onus to prove issue no.2 instead of being put on the defendants was put on the parties and hence the defendants were not required to lead the evidence first. However, I specifically put a query to the counsel for the petitioners that what was the prejudice to the petitioners in leading evidence first but obviously no answer could be given. It be noted that as per a catena of judgments of the Supreme Court once evidence is led by both the parties the issue of onus pales into insignificance.
6. Learned counsel for the petitioners also argues that an additional issue was framed with respect to whether petitioners/defendants have attorned to the respondents/plaintiffs, however, I fail to understand as to how that can change the finality of an order with respect to directing the petitioners/defendants to lead evidence first in the facts of this case and which order dated 5.2.2013 had become final.
7. In view of the above, I do not find any merit in this petition. The trial court in terms of the impugned order has rightly followed the earlier order passed by learned Single of this Court directing the petitioners/defendants to lead evidence first.
8. Dismissed. DECEMBER01 2014 ib CMM-1060/2014 VALMIKI J.
MEHTA, J.
Page 3 of 3