It is indeed a matter of common knowledge that whenever any party asserts its right, and pursuant thereto claims any enforcement of reliefs which is seriously disputed by the other side, then, obviously the burden to establish the same by leading the evidence is on the party asserting such rights. The Civil Procedure Code and the law of evidence are clear enough on the point to tell us that when facts are in dispute, the trial Court in the first instance is bound to frame the issues of facts and/or of law (as the case may be) as warranted under Order XIV. Rule 1 of the Civil Procedure Code, 1908. Such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence (if he so desires) to bring home the defence pleaded and in the third instance, enlighten the trial Court to test and appreciate the same in proper perspective to enable it to reach just decision.It is hardly required to be told that issues are back-bone of a suit. They are also the lamppost which enlightens the parti es to the proceedings, the trial Court and even the appellate Court - as to what is the controversy, what is evidence and where lies the way to truth and justice. Further framing of issues is absolutely essential to a right decision of the case and therefore this bounden duty of framing of issues primarily rests on the trial Court. Thus, taking into consideration the overall facts and circumstances of the present case, it is very clear that the opponent has not led any evidence in support of the claim and contentions. Under such circumstances, the question that arises for the consideration is two fold--firstly, whether such factually contradicted and contested point can ever be decided on the basis of bare assertions on the one hand and denial on the other hand? And secondly, whether the Court in its turn also without any evidence before it to enlighten its way to reach a just decision can arbitrarily decide the same? The obvious answer to this question is 'no'. This quick way of doing justice is nothing but quickening justice! Such arbitrary and haphazard summary procedure unnecessarily protracts the proceedings before the Court, because the aggrieved party is bound to challenge the same before the higher forums which in turn is bound to allow such patently illegal order and remand the same, resulting into multiplicity of the proceedings, physical and financial hardships, besides other inconvenience to the parties concerned, burdening the workload of the Courts at all stages costing precious public time and money, etc. etc. At the cost of repetition, it may once again be stated that the Courts are bound to frame issues of facts and/or that of law, as the case may be, when parties cross their swords disputing each other's right and thereafter only, decide the controversy between them on the basis of the evidence led before it. The trial Court must have an opportunity to test, appreciate and judge for itself the evidence produced before it, before it takes a particular decision one way or the other. In such cases, if the party asserting right does not lead evidence in support of its claim, it has to go home and thank itself. The oral assertions and production of some documents by themselves, by no stretch of imagination can throw any light on the controversy so as to enable the Court to do the real and substantial justice between the parties concerned. What is permissible to the High Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India is certainly not permissible to the subordinate Courts while deciding the applications of such a nature. In substance, what this Court emphasises is well propounded elementary principles of the Civil law which hardly requires to be further elucidated.
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Equivalent Citation : 1994 GLH (2)403
IN THE HIGH COURT OF GUJARAT
Decided On: 20.12.1993
State of Gujarat Vs. Jaipalsingh Jaswantsingh Engineers and Contractors
Hon'ble Judges/Coram:
K.J. Vaidya, J.
K.J. Vaidya, J.
1. "Whether the Court in view of the contentions facts between the rival parties without raising any issue thereupon and recording evidence in the light of the same can arbitrarily decide an application under Section 37(4) of the Arbitration Act, 1940?" In other words, "Whether the applicant and for that purpose even the opponent can succeed before the Court on mere ipse-dixit when the basic facts affirmed by one party and disputed by the other is not further supported by leading any evidence as regard their respective contentions?"
2. To state few relevant facts leading to raising of the aforesaid question - Opponent M/s. Jaipalsingh Jaswantsingh, Engineers & Contractors, Chandigarh filed an application being Civil Misc. Application No. 84 of 1988 in the Court of the learned Civil Judge [S.D], Baroda, under Section 37(4) of the Arbitration Act, 1940 (for short "Act") praying for extension of time limit placed by the agreement dated 16-12-1982. As alleged by the opponent, the State Government through the instrumentality of the Executive Engineer had entrusted the construction work of Irrigation Project No. IV at Rajpipla, under the agreement dated 16-12-1982 and that the said work was completed on 5-6-1986 (i.e., late by two years) due to some default on the part of the Government. Further according to the opponent, the Government prepared provisional bill in the month of October-November, 1987, however, as the same did not include about 14 claims, the opponent requested the concerned Executive Engineer for preparing the final bill by including the said claims which came to be rejected. Further, the opponent made a reference to the Superintending Engineer, who also in his turn rejected the same by his letter dated 25-2-1988. It is under these circumstances that the opponent filed an application under Section 37(4) of the Act praying for an implementation and operation of Clause 52 of the agreement, to refer the disputed claims to the Arbitrator seeking extension of the time limit placed by the said agreement. This was opposed to by the State by filing reply. According to the petitioner-State, the said application was not maintainable at all as no grounds existed for extension of time. Further, according to the petitioner-State, looking to the defect liability in Clause 18(g) and Clause 52 of the agreement, the trial Court had no jurisdiction to entertain the said application. It was further contended by the petitioner-State that the claim of the opponent was not well-founded and that it was not entitled to any claim and that the same was rightly rejected by the concerned authorities. On the basis of the bare assertions made in the application and the reply thereto and battle of words by way of arguments advanced thereupon, the trial Court granted application and extended the time as -prayed for. It is this order which has been challenged before this Court by way of present Civil Revision Application.
3. Ms. Katha Gajjar, the learned A.G.P. appearing for the petitioner-State while challenging the impugned judgment and order submitted that the same was ex-fade illegal inasmuch as the trial Court has clearly overlooked the defect liability Clause 18(g) of Clause 52 of the agreement while allowing the said application. The learned A.G.P. further submitted that there was a gross delay in making the said application under Section 37(4) of the Act. The learned A.G.P. further submitted that in view of the decision rendered in case of Sterling General Insurance Company v. Planters Average Private Limited reported in MANU/SC/0004/1974 : [1975]3SCR136 , the trial Court ought to have seen that while exercising the discretion under Section 37(4) of the Act as to whether time should be extended or not, it should have taken into consideration all the relevant circumstances of the case having bearing on the issue. It was further submitted by the learned A.G.P. that in order to circumvent payment of ad-valorem Court fees on the huge amount of Rs. 70,56,740/- by way of a device only, an application under Section 37(4) of the Act was made before the Court to be decided under the Act, which is otherwise not permissible.
4. As against the above, Mr. S.N. Soparkar, the learned Advocate for the opponent submitted that no case was made out by the learned A.G.P. to take exception to the finding given by the trial Court and in that view of the matter, this revision application deserves to be dismissed with costs.
5. Now, at the very outset, it must be stated that this Court is certainly not satisfied and therefore interested in the submissions made by both the learned Advocates appearing for the respective sides, as neither of them in fact are in a position to take their respective cases even an inch ahead except bare thunder of words without any flash of lightning by way of some evidence. Now, this Court is indeed quite disturbed to find that the impugned order suffering from patent vice and the infirmity, namely, that the trial Court has reached its conclusion in absence of any evidence brought on the record, more particularly, when the facts asserted by the opponents were headlong in collision with that of the petitioner! It appears that before the trial Court, except the word against the word, there was nothing to assist it to decide the controversial issue. Under such circumstances, it is strange to find as to on what light the trial Court made out a way to clutch at the particular conclusion which has been challenged before this Court! On perusing the impugned judgment and order, it clearly appears that the application has been summarily disposed on the bald assertions and some documents produced on record by respective sides. Not that in a given case the Court cannot straightway decide the matter without recording the evidence. In fact there are cases and cases and particularly, the cases wherein either the facts are not disputed by either side or that the point involved centers round some interpretation of pure question of law without any necessity to call in aid some factual evidence in support of the same, the Court can certainly decide the same on the bare pleadings and the arguments made in support of the same. It is indeed a matter of common knowledge that whenever any party asserts its right, and pursuant thereto claims any enforcement of reliefs which is seriously disputed by the other side, then, obviously the burden to establish the same by leading the evidence is on the party asserting such rights. The Civil Procedure Code and the law of evidence are clear enough on the point to tell us that when facts are in dispute, the trial Court in the first instance is bound to frame the issues of facts and/or of law (as the case may be) as warranted under Order XIV. Rule 1 of the Civil Procedure Code, 1908. Such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence (if he so desires) to bring home the defence pleaded and in the third instance, enlighten the trial Court to test and appreciate the same in proper perspective to enable it to reach just decision. It is hardly required to be told that issues are back-bone of a suit. They are also the lamppost which enlightens the parties to the proceedings, the trial Court and even the appellate Court - as to what is the controversy, what is evidence and where lies the way to truth and justice. Further framing of issues is absolutely essential to a right decision of the case and therefore this bounden duty of framing of issues primarily rests on the trial Court. Thus, taking into consideration the overall facts and circumstances of the present case, it is very clear that the opponent has not led any evidence in support of the claim and contentions. Under such circumstances, the question that arises for the consideration is two fold--firstly, whether such factually contradicted and contested point can ever be decided on the basis of bare assertions on the one hand and denial on the other hand? And secondly, whether the Court in its turn also without any evidence before it to enlighten its way to reach a just decision can arbitrarily decide the same? The obvious answer to this question is 'no'. This quick way of doing justice is nothing but quickening justice! Such arbitrary and haphazard summary procedure unnecessarily protracts the proceedings before the Court, because the aggrieved party is bound to challenge the same before the higher forums which in turn is bound to allow such patently illegal order and remand the same, resulting into multiplicity of the proceedings, physical and financial hardships, besides other inconvenience to the parties concerned, burdening the workload of the Courts at all stages costing precious public time and money, etc. etc. At the cost of repetition, it may once again be stated that the Courts are bound to frame issues of facts and/or that of law, as the case may be, when parties cross their swords disputing each other's right and thereafter only, decide the controversy between them on the basis of the evidence led before it. The trial Court must have an opportunity to test, appreciate and judge for itself the evidence produced before it, before it takes a particular decision one way or the other. In such cases, if the party asserting right does not lead evidence in support of its claim, it has to go home and thank itself. The oral assertions and production of some documents by themselves, by no stretch of imagination can throw any light on the controversy so as to enable the Court to do the real and substantial justice between the parties concerned. What is permissible to the High Court in its extra-ordinary jurisdiction under Article 226 of the Constitution of India is certainly not permissible to the subordinate Courts while deciding the applications of such a nature. In substance, what this Court emphasises is well propounded elementary principles of the Civil law which hardly requires to be further elucidated.
5.1 In view of the patent infirmity of not framing the issues and thereafter asking the parties to lead necessary evidence to establish respective claims, the impugned judgment and order being ex-facie illegal, the same deserves to be quashed and set aside. In this view of the matter, the instant case shall have to be remanded to the trial Court for recording necessary evidence. Under the circumstances, the trial Court is directed to frame issues and in the light of the evidence led before it, decide the same on merit according to law.
6. In the result, this revision application is partly allowed. The impugned judgment and order passed by the trial Court is hereby quashed and set aside. The matter is remanded to the trial Court for afresh proceedings. Taking into consideration the fact that the application in question is of the year 1988, the trial Court is directed to give the same top most priority and dispose of the same preferably on or before 31st July, 1994. Rule discharged.
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