Himachal Pradesh High Court
Xen Dph And Tlsc And Anr vs Shri Hari Ram And Anr on 3 July, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No.300 of 2020
Decided on 3.7.2020
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Xen DPH and TLSC and Anr .....Petitioners
Versus
Shri Hari Ram and Anr. .....Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? 1
For the petitioners : Mr. Rajesh Kumar Sharma, Assistant
Solicitor General of India, through Video
Conferencing.
For the respondents : Nemo.
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Sandeep Sharma, Judge (oral):
Having regard to the nature of order, this Court proposes to pass, it is not necessary to issue notice to the respondents because in the event of notice being issued to the respondents, they would be unnecessarily compelled to engage a lawyer to defend them in this Court and as such, same are dispensed with.
2. Instant petition filed under Article 227 of Constitution of India, lays challenge to order dated 30.11.2019, whereby the learned Additional District Judge, Bilaspur, proceeded to dismiss the application filed by the petitioners under Section 144 read with Section 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/07/2020 20:21:23 :::HCHP 2151 CPC, seeking therein direction to respondent to refund the excess amount of Rs. 2,93, 734/- alongwith future interest.
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3. Certain undisputed facts, which are relevant for adjudication of the case are that land of the respondents was acquired by the petitioners for laying transmission line. Feeling aggrieved and dissatisfied with the quantum of compensation awarded in favour of the respondent, they filed reference petition before the learned District Judge, praying therein for enhancement of compensation amount. In the reference petition, amount of compensation came to be enhanced, but petitioners being aggrieved with the enhancement, approached this Court by way of RFA No. 349 of 1991. This Court vide judgment dated 17.8.1998, remanded the case back to the learned District Judge, Bilaspur, for reconsidering the compensation amount. Pursuant to aforesaid direction issued by this Court, learned District Judge reduced the compensation of the land underneath the house and held that excess amount given by the petitioners-department to the respondents be recovered alongwith interest. Though respondents filed appeal against the aforesaid judgment rendered by the Additional District Judge Bilaspur, but same was dismissed vide judgment dated 31.12.2018 (Annexure P-5). In the aforesaid background, petitioners ::: Downloaded on - 06/07/2020 20:21:23 :::HCHP 3 herein filed application under Section 144 CPC in the court of learned District Judge, seeking therein direction to the respondents to refund .
the excess amount.
4. Material available on record reveals that respondents though deposited sum of Rs. 63,690/- in the court but expressed their inability to deposit the interest on this amount. On 27.2.2019, learned District Attorney representing the petitioners informed the court that factum with regard to deposit of excess amount by respondents stands duly informed to Executive Engineer O&M BBMB Bhiwani and as such, court vide aforesaid order directed the aforesaid officer to remain present on 30.11.2019. Since, the Executive Engineer failed to come present in terms of order dated 27.9.2019, learned District Judge proceeded to dismiss the application of the petitioners filed under Section 144 CPC while exercising powers under Order 17 Rule 2 CPC.
In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein to set-aside aforesaid impugned order.
5. Careful perusal of zimini orders placed on record alongwith the instant petition clearly reveals that the petitioners were duly represented by the District Attorney on each date. Similarly, this Court finds from the perusal of the order dated 30.11.2019 that on that ::: Downloaded on - 06/07/2020 20:21:23 :::HCHP 4 date, SDO Pawan Kumar had come present alongwith objections, but as noticed herein above, learned District Judge having taken note .
of the absence of the Executive Engineer, proceeded to dismiss the application filed under Section 144 CPC.
6. At this juncture, it would be apt to take note of the provision contained under Order 17 Rule 2 CPC, perusal whereof reveals that court can proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 CPC or make such other order if on that day, parties fail to appear.
7. No doubt in the case at hand, Executive Engineer, who is the applicant was not present, but fact remains that on that day, besides District Attorney, official of the department i.e. SDO Pawan Kumar, was also present alongwith the objections and as such, this Court is of the view that suit having been filed by the petitioners ought not have been dismissed by court while exercising power under Order 17 Rule 2 CPC.
8. Otherwise also, perusal of Order 3 Rule 1 CPC clearly reveals that parties to the suit can be represented through pleaders or through any authorized agent and as such, it cannot be said that on the date of passing of impugned order, nobody was present, ::: Downloaded on - 06/07/2020 20:21:23 :::HCHP 5 especially when presence of District Attorney alongwith SDO stands duly recorded.
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9. Moreover, perusal of order dated 27.9.2019, nowhere discloses specific reason, if any, for the presence of the Executive Engineer, rather careful perusal of aforesaid order reveals that matter was adjourned to apprise the Executive Engineer with regard to deposit of excess amount by the respondents, which fact was already in his knowledge as has been stated by the District Attorney on 27.9.2019. In the case at hand, this court has no hesitation to conclude that learned District Judge below has taken hyper technical view while passing impugned order, which otherwise could not have been passed in the facts and circumstances of the case.
10. Consequently, in view of the above, present petition is allowed and order dated 30.11.2019 passed by the learned District Judge is quashed and set-aside and application filed under Section 144 CPC is restored. Learned District Judge below is also directed to consider and decide the application afresh in light of the instant order passed by this Court. Learned counsel for the petitioners undertakes to cause presence of his client before the court below on 20.7.2020, enabling the court below to proceed with the matter afresh in terms of direction contained in the instant order. Registry is also directed to ::: Downloaded on - 06/07/2020 20:21:23 :::HCHP 6 apprise the court below with regard to passing of instant order, enabling it to do the needful well within the stipulated period. In the .
aforesaid terms, petition stands disposed of, so also, pending applications if any.
3rd July, 2020 (Sandeep Sharma),
manjit Judge
r to
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