Himachal Pradesh High Court
Satyender Sharma & Ors vs Smt. Sureshta Devi & Others on 25 June, 2024
Author: Virender Singh
Bench: Virender Singh
1( 2024:HHC:3925 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP No. 6758 of 2023 in RSA No. 17 of 2009 .
Reserved on : 12.6.2024 Decided on: 25.6.2024 Satyender Sharma & ors.
... Applicants/appellants Versus Smt. Sureshta Devi & others ...Non-applicants/Respondents _____________________________ ______________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Applicants /appellants : Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate For the Respondents /non-applicants : Mr. Ankit Dhiman, Advocate vice Mr. Naresh Kaul, Advocate, for non-
applicant No. 1.
Ms. Anchal Sharma,
Advocate vice Mr.
Surender Sharma,
Advocate, for non-
applicants No. 2(a) to 2(c).
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2( 2024:HHC:3925 )
Name of non-applicant/
respondent No.3 stands
deleted.
Mr. Sanjay Jaswal,
.
Advocate, for non-
applicants No. 4(a) to 4(d).
Virender Singh, Judge
This order shall dispose of an application, filed under Order 23 Rule 1 of the CPC, by the appellants.
2. By way of present application, a prayer has been made to permit the appellants to withdraw the suit, with a liberty to file fresh suit, on the same cause of action.
3. Brief facts, leading to filing of the present application, may be summed up, as under:
The applicants (legal representatives of the plaintiff) have preferred the instant Regular Second Appeal appeal, against the judgment and decree, dated 13.12.2007, passed by the Court of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala (hereinafter referred to as 'the First ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 3( 2024:HHC:3925 ) Appellate Court'), in Civil Appeal No. 46-N/05/03, titled as, 'Paras Ram versus Sureshta Devi & others'.
3.1 The said appeal was filed by plaintiff .
Paras Ram, against the judgment and decree, dated 19.6.2003, passed by the Court of learned Sub Judge-II, Nurpur, District Kangra, H.P. (hereinafter referred to as 'the learned Trial Court'), in Civil Suit No. 179 of 1993, titled as, 'Paras Ram versus Sureshta Devi & others', whereby, the learned trial Court has dismissed the suit of the plaintiff, filed for vacant possession, against the defendants.
3.2 The present appeal has been admitted by this Court on 28.5.2009.
3.3 During the pendency of the appeal, before this Court, the present application has been moved.
3.4 As per averments of the application, while preparing the arguments, it came to fore that due to technical/formal defects, the appeal is likely to fail, thereby causing immense losses to the applicants.
::: Downloaded on - 25/06/2024 20:32:14 :::CIS4( 2024:HHC:3925 ) 3.5 Elaborating the formal defects, it is the case of the applicants that in the plaint, the suit property has not been properly described, as according to the .
Jamabandi for the year 1961-62, subject matter of the lis was owned by three sisters, i.e. Savitri, Vidya and Bhekari. In the year 1961, Bhekari sold about 40 kanals of land falling to her share to plaintiff Paras Ram (father of applicants). Thereafter, Savitri Devi filed pre-emption suit, claiming pre-emptory rights. The said suit was registered as Civil Suit No. 144 of 1971/90 of 1978/14 of 1981 and was finally decided, vide judgment and decree, dated 14.9.1998.
3.6 Vide judgment and decree, dated 14.9.1998, the learned Sub Judge, Kangra at Dharamshala, Camp at Nurpur decreed the suit, for possession of 1/6th share, in the suit property, in favour of Savitri Devi, and against Paras Ram plaintiff, and his brother Salig Ram.
::: Downloaded on - 25/06/2024 20:32:14 :::CIS5( 2024:HHC:3925 ) 3.7 The said judgment & decree was challenged before the learned District Judge, in Civil Appeal No. 279 of 1982 by Savitri Devi. However, her appeal .
was also dismissed on 31.3.1986.
3.8 Defendant/non-applicant Sureshta Devi is stated to be widow of Prakash Chand.
Defendant/Non-applicant/respondent No. 2, Bal Krishan is son of Prakash Chand. Defendant/non-
applicant Sureshta Devi is daughter of Savitri Devi, respondent No. 3. Said Savitri Devi, is widow of Moti Ram. Des Raj is son of Moti Ram. It has come on record that Moti Ram lived with Savitri Devi as husband, being "Ghar Jawain".
3.9 According to the applicants, in the revenue record, a wrong entry came up, regarding possession of Paras Ram through Prakash Chand. The said entry of possession of the applicants through Prakash Chand was shown for the first time in the Jamabandi for the year 1996-97, Ext. P-7, on the ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 6( 2024:HHC:3925 ) basis of decision taken by LRO of Raja-Ka-Talab, on 28.8.1986.
3.10 The said entry is stated to be bad, as owners .
of the suit property (applicants) were shown in possession through Prakash Chand. In the said suit, said entry of possession of Prakash Chand has been declared as null and void. Thereafter, by moving an application under toOrder respondents/non-applicants r 1 Rule No. 3 and 4 were 10 CPC, added, despite objections of the applicants.
Although, the suit filed by the plaintiffs/applicants was dismissed.
3.11 While deciding the said suit, the learned trial Court has held that the suit is not maintainable and defendants have been declared as owners of the suit land, under the Himachal Pradesh Tenancy and Land Reforms Act, vide issue No. 7(a).The appeal filed by the plaintiffs/applicants, was also dismissed.
::: Downloaded on - 25/06/2024 20:32:14 :::CIS7( 2024:HHC:3925 ) 3.12 Asserting the fact that applicants are the owners of the suit land, it is the case of the applicants that in the year 1996-97, wrong and .
illegal entry came up, in the revenue record, showing the possession of the plaintiff Prakash Chand.
However, order dated 28.8.1986, in Misal No. 742/1986 by LRO, Raja Ka Talab has not been challenged. Non-challenging of the said order is stated to be formal defect.
3.13 According to the applicants, owing to the said defect, their appeal is likely to fail.
3.14 The applicants have further elaborated their case by pleading that Savitri Devi is co-sharer with the applicants-plaintiffs and she cannot be tenant of every co-sharer and every co-sharer is owner of every inch of land.
3.15 On the basis of above facts, the relief, as claimed in the application, has been sought.
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4. When, put to notice, the application has been contested by non-applicants No. 4(a) to 4(d) by taking preliminary objections, that the litigation is at .
the fag end, and in case, the prayer is allowed, the same would amount to harass the defendants.
5. According to the non-applicants/defendants, the suit was filed about 30 years ago, and, in case rights of r the to the prayer is allowed, it will cause prejudice to the defendants/non-applicants. The application is stated to have been filed to get rid of the findings, which have been recorded by the learned trial Court, against the plaintiffs/applicants.
6. The prayer with regard to permission to file fresh suit on the same cause of action has been opposed on the ground that there is no formal defect.
7. On merits, contents of the application have been denied on the ground that the plaintiffs/applicants cannot be permitted to ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 9( 2024:HHC:3925 ) withdraw the suit to fill up the lacunae, left in their case, that too, after concurrent findings by both the Courts below.
.
7.1 It is the further case of the non-applicants that the order passed on 28.8.1986 by LRO Raja-Ka-
Talab is ought to have been challenged by them and non-challenge the said order, according to the non-
defect.
r to applicants/defendants, does not amount to formal
8. Rest, all the contents have also been denied.
9. In rejoinder, preliminary objections, as well as, contents of the reply, by virtue of which, the applicant has been contested, have been denied.
10. The perusal of the record shows that the plaintiff/applicant has filed suit against the defendants, seeking relief of vacant possession of land, comprising of khewat No. 19, Khatauni No. 54, khasra Nos. 142, 143, 144 and 148 area measuring 0-43-056 HM, situated in Mohal Thana, Mauza ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 10( 2024:HHC:3925 ) Jassure, Tehsil Nurpur, District Kangra, H.P., as per misal hakiyat, for the year 1984-85 (hereinafter referred to as "the suit land").
.
11. In para-3 of the plaint, it is the specific case of the plaintiff that Prakash Chand was neither inducted as tenant over the suit land, nor he was ever given the suit land for cultivation, in any other capacity. The possession over the suit land is stated to be taken by force by Prakash Chand. Thereafter, he has raised some construction over it. Said Prakash Chand is predecessor-in-interest of defendant Sureshta Devi and Bal Kishan.
12. While replying to para-3 of the plaint, defendants have denied those allegations. It is their stand that mother of Sureshta Devi had given the suit land to deceased Prakash Chand, and thereafter, defendants had constructed residential house thereupon.
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13. The learned trial Court although dismissed the suit of the plaintiff, but, while deciding Issue No. 3, it has held that the plaintiff has lost his title over .
the suit land on 3.10.1975, the appointed day. Issue No. 3 is reproduced as under:
"Whether the suit is within time? OPP"
14. As per document, Ext. P-1, which is Misal Hakiyat Bandobast, for the year 1984-85, the following entry has been found to be recorded:
"Santosh Kumar, Tarun Kumar, Soma Devi and Parso, Co-sharers, through Prakash Chand, S/o Rasila, S/o Ishra."
15. There is a note that name of Prakash Chand as a person in possession has been ordered by LRO, Raja Ka Talab, vide order dated 28.8.1986.
16. As per the averments made in the application, under consideration, said entry, as well as, order passed by the LRO, Raja Ka Talab, has not been challenged by the plaintiff. According to the applicants, those entries, as well as, order, passed by the LRO were required to be challenged.
::: Downloaded on - 25/06/2024 20:32:14 :::CIS12( 2024:HHC:3925 ) These facts have been pleaded to show that due to this formal defect, suit of the plaintiff is likely to fail.
.
17. The term "formal defect" has nowhere been defined in the CPC. The term "formal defect" should be interpreted clearly, which should take, within its sweep, every kind of defects, not affecting the merits of the case.
18. The r Hon'ble to Supreme Court in a case reported as 'K.S. Bhoopathy and others versus Kokila & others', AIR 2000 SC 2132, has held that it is the duty of the Court to feel satisfied about the existence of proper grounds/reasons, for granting the permission to withdraw the suit with leave to file fresh suit, on the same cause of action. Relevant paragraph-12 of the judgment is reproduced as under:
"12. The provision in Order XXIII, Rule 1, CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 13( 2024:HHC:3925 ) under sub-rule (3) cannot be treated on par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the Court after .
satisfying the Court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the Court but such discretion is to be exercised by the Court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the provisions of sub-rule (3) in which two alternatives are provided. (1) where the Court is satisfied that a suit roust fail by reason of some formal defect, and the other where the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the Court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The Court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule (1) is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 14( 2024:HHC:3925 ) result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of .
adjudication of the dispute by the Court or courts below. Grant of permission for withdrawal of a suit with leave to file afresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the suit with leave to file a fresh suit on the same cause of action.
Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of Courts which is of considerable importance in the present time in view of large accumulation of cases in lower courts and inordinate delay in disposal of the cases."
19. In view of the decision of Hon'ble Supreme Court, the material question, which arises for determination, before this Court, is that non-
challenging the revenue entries, as well as, the order passed by the LRO of Raja Ka Talab, by the plaintiff, amounts to formal defect or not?
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20. The learned trial Court has held that limitation for challenging the entry in the revenue record is three years, from the date of said cause of .
action. According to the learned trial Court, the plaintiff could have filed the suit within three years, from the date of passing orders by the LRO, Raja Ka Talab, Ext. P-5, whereas, he has filed the suit, in the year 1993.
21. to In addition to this, it has also been held that the plaintiff has lost his title over the suit land on 3.10.1975, i.e. on the appointed day. The learned First Appellate Court has also held that after coming into force the H.P. Tenancy Land Reforms Act, proprietory rights have been conferred upon Moti Ram. After his death, the possession remained with his Successor-in-interest.
22. Another ground, upon which, the appeal was dismissed by the learned First Appellate Court, is that the plaintiff has failed to establish that ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 16( 2024:HHC:3925 ) Prakash Chand had taken forcible possession and Moti Ram was never the tenant.
23. At the cost of repetition, the plaintiff has .
neither challenged the revenue record, nor he has challenged the order passed by the LRO.
24. The plaintiff Paras Ram had taken the specific plea that Prakash Chand was never inducted as tenant, nor he has given the suit land for cultivation, in any capacity. In such situation, when the plaintiff could not succeed in proving the case, then, the present application is too short to prove the alleged formal defect.
25. The learned trial Court, in the present case, has framed issue No. 7(a), which is reproduced as under:
"7(a) Whether the defendants have become owner of the suit land by operation of H.P. Tenancy and Land Reforms Act, as alleged? OPP"
26. When, the specific issue has been framed and both the parties have led evidence, then, the ::: Downloaded on - 25/06/2024 20:32:14 :::CIS 17( 2024:HHC:3925 ) plaintiff is estopped from raising the plea that he could not challenge the order passed by the LRO, Raja-Ka-Talab.
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27. Unless and until, the applicants are not able to prove their case that there is formal defect in the plaint, and the suit of the plaintiff is likely to fail, the prayer made in the application cannot be
28. to allowed. Consequently, the same is dismissed.
Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application.
RSA No. 17 of 2009List for hearing on 26.7.2024.
(Virender Singh) Judge 25th June, 2024 Kalpana ::: Downloaded on - 25/06/2024 20:32:14 :::CIS