Himachal Pradesh High Court
Subhar Alias Subhash Chand vs Jagdish Chand & Others on 13 November, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 44 0f 2017 .
Reserved on : 25th October, 2017.
Decided on : 13th November, 2017.
Subhar alias Subhash Chand .....Petitioner.
Versus Jagdish Chand & others Coram:
r to ..Respondents.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. G.D. Verma Senior Advocate with Mr. B. C. Verma Advocate.
For the Respondents: Mr. R.K. Sharma, Senior Advocate with Ms. Anita Parmar, Advocate.
Sureshwar Thakur, Judge The instant Civil Revision Petition stands directed by the petitioner against the orders pronounced by the learned Additional District Judge, Hamirpur, upon 1 Whether reporters of the local papers may be allowed to see the judgment?
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CMA No. 133/2-15, cast under the provisions of Section 5 of the Limitation Act, whereby, the aforesaid application was allowed.
2. The learned Civil Judge(Senior Division), Hamirpur, had, upon an petition bearing CMA No. 173 of 2008, cast under the provisions of Order 39, Rule 2-A of the CPC, made an affirmative order thereon.
r Being aggrieved therefrom, the respondents herein, made a belated concert to assail, it, by filing an appeal before the learned first Appellate Court. Since, the apposite motion made by the aggrieved against pronouncement made upon CMA No. 173 of 2008, for hence, impeaching it, was belated, thereupon, they cast an application constituted under the provisions of Section 5 of the Limitation Act, wherein, they sought condonation of delay in theirs belatedly motioning the learned Appellate Court. The application, cast under the provisions of Section 5 of the Limitation Act, was, instituted before the learned ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...3...
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Appellate Court, on 20.06.2015. The grounds constituted therein, whereupon, the aggrieved stood hence precluded to within time institute an apposite appeal, for assailing the impugned order recorded by the learned Civil Judge, Senior Division, Hamirpur in CMA No. 173 of 2008, are extracted hereinafter:-
"That the applicants/appellants are filing the appeal bit late due to their domestic problem as appellant No.1 was not feeling well due to his ailment, who is the only person, who is taking initiative to represent the case in Court."
3. The aforesaid grounds, as meted, in the apposite application, were enjoined to be also ad verbatim, hence, testified by the applicant concerned.
However, the testification rendered by the applicant, is in dire disconcurrence with the afore extracted averments, cast in the application constituted under the provisions of Section 5, of the Limitation Act. The disconcurrence ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...4...
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therefrom, is, borne from AW-1 testifying of (a) with occurrence of ambiguity(ies) in the rendition recorded by the learned trial Court concerned, hence his being constrained, to, not within time institute an appeal therefrom, before the Appellate Court and (b) of the learned amendment(s) trial r Court, or to for meteing correction(s) appropriate vis-a-vis the ambiguity(ies) borne in its order/judgment, hence, entailing the applicants to move an appropriate application before it; (c) whereafter on an appropriate judicial amendment being meted vis-a-vis the order rendered by the learned trial Court upon CMA No. 173 of 2008, theirs holding belated knowledge thereof AND upon theirs acquiring knowledge thereof, theirs promptly motioning the Appellate Court concerned, for assailing the verdict pronounced upon CMA No. 173 of 2008. The aforesaid contradictions inter se the pleadings reared by the applicants/respondents herein in the application, cast ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...5...
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under the provisions of Section 5 of the Limitation Act vis-
a-vis the testification of AW-1, (i) would per se render the averments embodied in the apposite application, cast under the provisions of Section 5 of the Limitation Act, to be hence not proven also evidence in contradiction(s) thereto, while obviously being beyond pleadings, being amenable for its being discarded. However, even if, the aforesaid inferences are rearable, from, inter se contradictions existing in the inapt averments, cast in the apposite application vis-a-vis the testification(s) rendered in respect thereto, by AW-1. Nonetheless, the aforesaid inference, cannot, stall the applicants/respondents herein, to yet concert to validate the impugned pronouncement nor the impugned pronouncement would suffer any vitiation unless (a) the testification rendered by AW-1, though, distinctive from the averments, cast in the apposite application, are not borne by the apt judicial record(s); (b) the application, cast under the provisions of ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...6...
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Section 5 of the Limitation Act, being preferred earlier vis-a-vis the applicants' motioning the learned trial Court concerned, for its making an apposite correction/amendment, upon, the apposite rendition recorded, by it, upon CMA No. 173 of 2008. In the aforesaid discernment(s), judicial records, r to (c) a close scrutiny, of, the underscores the factum of the pronouncement made by the learned trail Court, upon, apposite CMA No.173 of 2008 occurring on 27th March, 2015, whereafter, an appeal therefrom, accompanied by an application, cast under the provisions of Section 5 of the limitation Act, stood, instituted on 20.06.2015, before the learned Appellate Court. However, subsequent thereto, an application was instituted on 8.7.2015, application wereof was constituted under the provisions of Sections 151 and 152 of the CPC, wherein, the aggrieved sought correction or amendment(s) being made in the order recorded, by the learned trial Court, ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...7...
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upon CMA No.173 of 2008. However, thereon, an affirmative order was recorded on 31st December, 2015.
The aforestated factual matrix, underscores, of, the judicial records withstanding the test of the testifications rendered, by the applicant(s) bearing congruity therewith.
Consequently, also the judgment correction, became, the apt appealable judgement, than, r after the judgment appealed earlier on 20.06.2015 by the defendants/respondents. Nonetheless the testifications rendered by the applicant would acquire vigour also would belittle the efficacy of the aforesaid inference, of, it being discardable, it being beyond pleadings, (i) upon an affirmative order being evidently pronounced upon an application cast under the provisions of Order 6, Rule 17 of the CPC. (ii) However, with the applicants evidently not moving the aforesaid application before the learned Appellate Court (iii) renders all testifications echoed beyond pleadings being hence discardable.
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Concomitantly, the appeal preferred by the defendants/respondents herein against the unamended judgment was misconstituted, with a concomitant effect, of, the pronouncement recorded by the learned Appellate Court upon CMA No.133 of 2015 on 8.2.2017 being frail besides invalid.
4. to Dehors the aforesaid omissions, preeminently (I) when the order rendered by the learned trial Court upon an application, cast before it under the provisions of Sections 151 and 152 of the CPC, sequelled on 31.12.2015, an affirmative pronouncement thereon, thereupon, thereafter the applicant(s) is/are vested, with a right to rear an appeal therefrom.
5. For the foregoing reasons, the instant petition is allowed and the impugned order is set aside. However, the respondents are at liberty, to, in accordance with law avail the appropriate remedies, for making a challenge vis-a-vis the appealable amended/corrected orders, ::: Downloaded on - 18/11/2017 22:58:19 :::HCHP ...9...
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rendered on 31.12.2015 in CMA No.186 of 2015. All pending applications also stand disposed of. No costs.
(Sureshwar Thakur) 13 th November, 2017. Judge.
(jai)
r to
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