Allahabad High Court
Rukan Singh vs Mahendra Singh And Others on 19 September, 2022
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 Case :- MATTERS UNDER ARTICLE 227 No. - 324 of 2007 Petitioner :- Rukan Singh Respondent :- Mahendra Singh And Others Counsel for Petitioner :- K.M. Garg Counsel for Respondent :- SC,Raj Mohan Saggi Hon'ble Siddhartha Varma,J.
A Suit being Original Suit No. 28 of 1995 was filed by the applicant against the respondents and one Jeet Singh. Relief sought was that the defendants be made to pay to the plaintiff Rs. 15,000/- as costs of the trees which were cut away by them from the plaintiff's plots nos. 1136 and 1139 which were having an area of about 14 bighas. The boundaries of the plots in question were also given in the plaint. The defendants filed their written statements denying the claim of the plaintiff saying that the plaintiffs were not the owners in possession of plots nos. 1136 and 1139 and they also denied the boundaries as were given in the plaint. However, after the framing of issues the Suit was decreed on 21.2.2006. While deciding the issue no. 1, it was categorically found that the plots nos. 1136 and 1139 were in the ownership of the plaintiff and that subsequently these plots were numbered as plot no. 159 after consolidation which fact was clear from the C.H. Form - 41 (Form which the consolidation authorities issue for showing the changed number of plots).
The Trial Court had also concluded that the fact that from plots nos. 1136 and 1139 (which were subsequently numbered as plot no. 159) the defendants had cut away the trees, was also clear as the khasras with regard to the old plots of the fasli year 1402, 1407 and 1410 had on them trees of Siros, Eucalyptus, Shisham and Jamun while the later khasras had no trees on them. This finding was arrived at despite the fact that the defendants had come up with a case that the trees in question were standing on their plots which were numbered as plot no.169.
The Trial Court had decreed the Suit despite the fact that the defendants had stated that in Khasras of 1402F to 1410F, the trees of Shisham, Siras, Jamun and Eucalyptus were there in their plot.
The Trial Court had found that the trees in question were definitely there on the plots of the plaintiff and had been cut away by the defendants because the defendants had admitted that they had cut away certain trees and the trees on their plot no.169 were still in existence.
Not satisfied by the Trial Court's decree, the respondents other than Jeet Singh who had died during the pendency of the Suit, filed an Appeal.
Before the appellate Court, the plaintiff filed an application (17ga) on 17.10.2006 for bringing an additional issue ("क्या विवादित पेड़ युकलिप्टुस, सिरस, खसरा न. 159 में स्थित थे") The plaintiff also filed an application for amending the plaint on 17.10.2006 which was numbered as 18(ka). In it he had prayed that in paragraph no. 1 the word, "Chak" be deleted and the plaintiff be permitted to write "Purana Khasra" instead. Further prayer was made that in paragraph no. 1 itself "चकबंदी में पुराने खसरा न. 1136 व 1139 से चकबंदी तथा अन्य खसरा नम्बरों से नया खसरा न. 159 बना है" be added.
Still further, an application was moved on 4.11.2006 for the issuance of a survey commission.
On 17.10.2006, the application which is numbered as 17(ga) was rejected. Thereafter on 2.11.2006, the application no. 18(ga) was also rejected and finally on 6.11.2006 the application for survey commission being application no. 20(ga) was also rejected. Thereafter, the appeal which was filed by the respondents was decided and allowed on 4.1.2007.
The plaintiff-applicant has filed the instant writ petition against the order dated 17.10.2006 by which the application for framing of issues was rejected; the order dated 2.11.2006 by which the amendment application was rejected and the order dated 6.11.2006 by which the application for issuing the survey commission was rejected and also for the setting aside of the judgement and decree dated 4.1.2007 by which the Appeal was allowed.
No Second Appeal was filed as by the amendment of the Civil Procedure Code, no Second Appeal lay for a Suit where recovery of money was not exceeding Rs.25,000/-.
Learned counsel for the applicant relied upon the judgements of the Supreme Court reported in AIR 1960 SC 941 (Satyadhyan Ghosal and others vs. Smt. Deorjin Debi and another) and (2020) 7 SCC 327 (Mohd. Inam vs. Sanjay Kumar Singhal and others) and has submitted that interlocutory orders which could have been earlier challenged by means of Revision could very well be challenged before this Court while challenging the judgement and decree of the First Appeal dated 4.1.2007.
Learned counsel for the petitioner further submitted that if the applications (17ga), 18(ka) and 20(ga) were allowed then the confusion which was there in the mind of the Appellate Court with regard to the number of plot would have been cleared and he therefore submits that the amendment application ought to have been allowed. The survey commission would also have cleared all doubts.
Learned counsel for the petitioner further submitted that the Appeal was a continuation of a Suit and, therefore, the amendment application by which no admission was being withdrawn or by which no right which had accrued to the defendant was being challenged ought to have been allowed. He further submitted that since the amendment application was in a Suit which was filed prior to the amendment which was brought in the Code of Civil Procedure on 1.7.2002 the amendment application ought to have been allowed as had been held in (2009) 12 SCC 689 (Sumesh Singh vs. Phoolan Devi and others). The amendment application was thus not barred by the proviso to Order VI Rule 17 and that the same ought to have been allowed.
Learned counsel for the petitioner-applicant further submitted that issuance of the survey commission was also important as that would have cleared the cob-web in the mind of the Appellate Court and for this purpose, he relied upon the judgement reported in 2000 (7) JT 379 (Shreepat v. Rajendra Prasad & Ors.). He also relied upon a judgement of the Allahabad High Court reported in AIR 1975 ALLAHABAD 406 (Gajraj and others vs. Ramadhar and others).
Further, it is the case of the applicant-petitioner that if the case of the plaintiff was clear from the pleading which was to the effect that from plots nos. 1136 and 1139, the boundaries of which were given, then it mattered little that the changed plot no. 159 was not given in the plaint.
Learned counsel for the petitioner further submitted that when the C.H. Form 41 was present as an evidence before the Court then it was evident that the two plots numbered as 1136 and 1139 were converted to plot no. 159. He further submitted that the defendants always stated that plot no. 169 was their plot and on their plot trees which found place in the khasras of the years 1402 to 1410F were very much standing and in face of the admission of the defendants that they had cut away the trees it was only very evident that they had cut them away from the plaintiffs plots. Therefore, he submits that no interference ought to have been made by the Appellate Court.
Learned counsel for the plaintiff-applicant relied upon AIR 1987 SC 1242 (Ram Sarup Gupta(dead) by L.Rs. vs. Bishun Narain Inter College and others) and submitted that it was not desirable to place undue emphasis on form; instead he submitted that substance of pleadings should have been considered.
Since the learned counsel for the petitioner relied upon the paragraph no. 6 of the judgement the same is being reproduced here as under:-
"The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul, (1966) 2 SCR 286 : (AIR 1966 SC 735) a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.""
He further relied upon a judgement of the Supreme Court reported in 1956 SC 593 (Nagubai Ammal and others vs. B.Shama Rao and others).
Learned counsel for the petitioner heavily relied upon another judgement of the Supreme Court reported in AIR 1974 SC 1069 (Katikara Chintamani Dora and others v. Guatreddi Annamanaidu and others). The relevant portion of paragraph no. 55 which the learned counsel relied upon is being reproduced here as under :-
"We think, with all respect, that such an assumption was contrary to the well-established principle that in construing a pleading or a like petition, in this country, the court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter."
A similar view which was taken in AIR 1977 SC 1158 (Smt. Manjushri Raha and others etc. v. B.L. Gupta and others etc.) and which was cited before me also states that "pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people."
Learned counsel for the petitioner also relied upon (2013) 3 SCC 801 (Joseph Peter Sandy vs. Veronica Thomas Rajkumar and another) and submitted that lack of details in the pleadings cannot be a ground to reject a case for the reason that it can be supplemented through evidence by the parties.
Learned Senior Counsel appearing for the respondents Sri Anil Sharma assisted by Sri Raj Mohan Saggi, however, submitted that the Trial Court had exceeded its jurisdiction by concluding that plot no. 1136 and 1139 were now plot no. 159 despite the fact that there was no pleading. Learned counsel for the respondents relied upon 2001 JT (1) 252 (Makhan Lal Bangal v. Manas Bhunia & Ors) and submitted that there is a method by which issues have to be framed and when that is not followed the Court errs. He further relied upon a judgement of the Supreme Court reported in 2014 AIR SCW 2058 (Rajasthan State TPT Corporation and another vs. Bajranj Lal) and submitted that finding given in the absence of necessary pleadings and supporting evidence cannot be sustained in the eyes of law and he, therefore, submitted that when in the plaint there was no averment with regard to the fact that trees were standing on plot no. 159, the Appellate Court rightly allowed the Appeal and dismissed the Suit.
On the same issue, learned counsel for the respondents has relied upon 1998 (8) JT 39 (Saurashtra Chemicals v. Collector of Customs) and argued that in the absence of pleadings and evidence, if any, the case could not be considered by the authorities.
Having heard the learned counsel for the parties and having gone through the judgements which have been cited by them, this Court is of the view that the Appellate Court erred in interfering with the judgement and decree of the Trial Court. The Trial Court had conclusively given a finding that plot no. 1136 and 1139 the boundaries of which were given had been converted to plot no. 159 and this was also clear from the C.H. Form 41. If there was in any manner a slip in the drafting of the plaint and plot no. 159 was not mentioned then it did not mean that the Trial Court erred in considering the evidence which was produced with regard to plot no. 159.
When the issues were framed then clearly issue no. 5 was to the effect as to whether the plaintiff was the owner of the plots in question. The plots nos. 1136 and 1139 were involved in the case and C.H. Form No.41 had clearly stated that plot no. 1136 and 1139 were converted after consolidation into plot no. 159, therefore, there was absolutely no question that the defendants would be taken by surprise. In fact, the defendants while answering the plea that they had cut away the trees from the plaintiffs land had mentioned that yes they had cut away the trees but they had cut them away from their own land which was contained in plot no. 169. The natural conclusion, therefore, is that there was cutting of trees done by the defendants. What is more, the inevitable conclusion was also that as per the khasras of the defendants, the trees in their plots were still standing and, therefore, the finding was absolutely correct that the trees of the plaintiff alone had been cut away.
After having concluded that the Appellate Court had erred in interfering with the finding of the Trial Court, this Court is not giving any finding with regard to the fact as to whether the applications 17(ga), 18(ka) and 20(ga) were rightly or wrongly rejected. Suffice it to say that the orders by which these applications were rejected could have been challenged before this Court and the applicant petitioner if has challenged those orders, he has committed no wrong. However, since nothing would turn on whether they were rightly rejected or wrongly rejected, the impugned orders dated 17.10.2006, 2.11.2006 and 6.11.2006 are not being adjudicated upon.
The judgement and decree dated 4.1.2007 passed by the Additional District Judge, Court No.2, Bijnor, in Civil Appeal No. 25 of 2006 by which the first appeal was allowed deserves to be set aside and, therefore, is being set aside. The application under Article 227 of the Constitution of India is, accordingly, allowed.
Order Date :- 19.9.2022 PK