Himachal Pradesh High Court
Ram Swaroop vs Mandir Thakran Kalyan Rai on 15 November, 2001
Equivalent citations: AIR2002HP27
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. Being aggrieved by the judgment and decree dated 28-11-1997 passed by the learned Additional District Judge (I). Kangra thereby dismissing the appeal and upholding the judgment and decree dated 8-11-1995 passed by the learned Sub-Judge (2), Nurpur. appellant-defendant (hereafter referred to as 'the defendant') has preferred this second appeal.
2. Brief facts leading to the presentation of this appeal are that the respondent-plaintiff (hereafter referred as 'the plaintiff) instituted a suit for declaration that the land comprising Khasra Nos. 1172 to 1176 and 1254 measuring 242-99 square metres, situate in Up Muhal Niazpur. Mauza Nurpur Khas, Tehsil Nurpur, District Kangra, is owned and possessed by it and the order dated 10-1-1989 passed by the Settlement Officer. Kangra is illegal, null and void and not binding on it and for possession of the suit land by demolition of the structure standing on the suit land.
3. The case of the plaintiff, as made out in the plaint. Is that the suit land was let out to Munu Ram on 3-4-1954 on annual rent of Rs. 18/- by Nanak Chand, the then owner thereof. Subsequently, the said owner donated the suit land to the plaintiff-Mandir and thereafter said Munu Ram started paying the rent to Shanta Nand, the then Mohatmin of Mandir. Munu Ram constructed a tin-roof shed on a portion of the suit land and also installed a rice shelling machine, one Atta Chakki and one cotton grinding machine. The defendant also started working with Munu Ram. therefore. along with Munu Ram he was also accepted as a tenant on the suit land. After the death of Munu, the defendant paid rent of the suit land to the present Mohatmeen of the Mandir. namely, Des Raj for two years i.e. 1986-87 and 1987-88. The defendant, however, in collusion with the revenue settlement staff obtained an order dated 10-1-1989 passed by the Settlement Officer in his favour whereby an entry showing the defendant as owner of the suit land was ordered to be made. The order dated 10-1-1989 was passed at the back of the plaintiff who was never made a party to the proceedings and is a result of fraud and mis-representation and thus null and void. After the passing of the order dated 10-1-1989, the defendant asserted title over the suit land and thus forfeited his right of tenancy and is therefore, liable to be evicted from the suit land and the plaintiff is entitled for possession thereof after demolition of the construction raised thereon.
4. The defendant contested the suit. In his written statement he raised the preliminary objection1 s that the suit is not maintainable In the present form, that the plaintiff has no cause of action and locus standi to institute the suit, that the suit Is barred by time and Is not properly valued for the purposes of Court-fee and jurisdiction. On merits, it was claimed that Des Raj is not the Mohtamim of the Mandir and has no concern with the suit land. The brother of the defendant, namely, Bakshi Ram purchased the suit land by oral sale from Nanak Chand. the then owner of the suit land in the year 1954 for consideration in the sum of Rs. 90/- and thereafter the suit land remained in their possession. The defendant has further claimed that he was living with said Bakshi Ram and used to help him in the business of Atta Chakki and rice shelling machine etc. installed over the suit land. Bakshi Ram died issueless on 4-4-1987 and being his legal heir defendant inherited the suit property. It is further averred that the order dated 10-1-1989 passed by the Settlement Officer is according to the factual position on the spot. It has been denied that Munnu Ram was Inducted as a tenant over the suit land or he was paying rent. The defendant, thus, dened the claim of the plaintiff in toto.
5. The plaintiff filed replication controverting the grounds of defence as taken in the written statement and re-affirming the claim as made in the plaint.
6. On the pleadings of the parties, the trial Court framed the following issues;-
"1. Whether the plaintiff is the owner of the suit property, as alleged?
. . . OPP
2. If issue No. 1 is proved, whether the order dated 10-1-1989 passed by the Settlement Officer Kangra at Dharamshala in case No. 50/86/90 in favour of the defendant Is illegal, null and void and not binding on the rights of the plaintiff, as alleged?
. . . OPP
3. Whether mutation No. 287, sanctioned on the basis of the aforesaid order Is also null and void and not binding on the rights of plaintiff, as alleged?
. . . OPP
4. Whether the plaintiff is entitled to the decree of ejectment of the defendant by way of demolition of the structure from the suit land, as alleged?
. . , OPP
5. Whether the suit is not maintainable in the present form, as alleged?
.. . OPD
6. Whether the plaintiff has no cause of action to sue. as alleged?
...OPD
7. Whether the plaintiff has no locus standl to sue, as alleged?
...OPD
8. Whether the suit is time barred, as alleged? .. . OPD
9. Whether the suit is not properly valued for the purpose of Court-fee and Jurisdiction, as alleged?
,. . OPD
10. Relief.
7. By its judgment dated November 8, 1995 the trial Court decided issue Nos. 1 to 4 in favour of the plaintiff and remaining issues were decided against the defendant and as a consequence the suit was decreed.
8. Being aggrieved, the defendant pro ferred an appeal against the judgment of the trial Court which was heard and decided by the learned Additional District Judge(II), Kangra at Dharamshala. During the pendency of the appeal, the defendant also preferred an application under Order 6, Rule 17, C.P.C. (hereafter referred to as 'the Code') for amendment of the written statement which was also dismissed by the learned Additional District Judge vide his order dated 19-11-1997 and finally the appeal was also dismissed by the impugned judgment and decree.
9. This appeal was admitted for hearing vide order dated 6-8-1998 on the following substantial questions of law:-
"1. What is the effect of Section 14 of the H. P. Urban Rent Control Act. 1987 vis-avis the facts of the case and decision of the Courts below and whether the Courts had jurisdiction to try and determine the case in the face of Section 14 of the H. P. Urban Rent Control Act. 1987 and whether the decision of the Courts below is a nullily in law?
2. What is the effect of findings of the Courts if there is glaring discrepancy in t he pleadings and evidence adduced by the plaintiff?
3. Whether the learned Additional District Judge, Kangra has decided and ignored the relevant and material evidence and has based his decision on irrelevant evidence and has also grossly misread the evidence of the appellant leading to palpably errone-
ous findings?
4. Whether in the facts and circumstances of the case, the decision of the learned Additional District Judge, Kangra is based upon a complete mis-conception on a point of law?
5. Whether the findings of the Court below are substantiate in the face of the evidence and legal position as applicable to the facts of the case?
6. Has the findings of learned Additional District Judge, Kangra are vitiated by not framing or formulating proper points for determination and, if so, its effect on the case?"
10. At the time of commencement of arguments, the learned counsel for the appellant very fairly and rightly conceded that Question No. 1 (supra) does not arise for determination in the facts and circumstances of the case and Question Nos. 2 and 4 to 6 (supra) basically are questions of facts and are, therefore, redundant. It was. however, submitted that the application of the appellant under Order 6, Rule 17 of the Code for amendment of the written statement filed in the lower Appellate Court had wrongly and illegally been dismissed and such dismissal though called in question vide Para 4 of the memorandum of appeal, yet no substantial question of law has been formulated on the basis of this ground which in fact raises a substantial question of law. After hearing the learned counsel for the parties, in addition to the surviving question No. 3 following additional substantial question was formulated and allowed to be argued:-
"3-A. Whether the 1st Appellate Court had committed Illegality in dismissing the application of the appellant for amendment of the written statement and such dismissal has vitiated the impugned judgment and decree?"
11. I had heard the learned counsel lor the parties on Question Nos. 3 and 3-A (supra) and have also gone through the records.
SUBTANTIAI QUESTION NO. 3-A:
12. The appellant filed application in the lower Appellate Court for amendment of written statement so as to add counter-claim for a decree that the appellant was not bound by the judgment ad decree dated August 28. 1990 passed by the Sub-Judge 1st Class (1).
Dharamshala in Civil Suit No. 543/86/60/ 1987 titled Dev Raj v. Tirthanand as the same had been obtained by suppression of materials facts and on the basis of a forged Will. The application was resisted by the respondent and was dismissed by the lower Appellate Court on the grounds that (I) such an application was not maintainable for having been filed after the filing of written statement and (ii) the counter-claim was barred by limitation.
13. The ground for dismissal of the application that It. was not maintainable as it was filed after the filing of the written statement is not tenable. To support his conclusion, the learned Additional District Judge relied on Bank of Baroda v. Curcharan Singh. AIR 1986 Punj and Har 252 wherein a learned single Judge held that a defendant can file counter-claim before he files his written statement and cannot be allowed to do so by amending the written statement. With respect, 1 may say that I am unable to persuade myself to agree with the proposition laid in Dank of Baroda's case (supra).
14. Order 8, Rule 6A(1) of the Code reads as follows :
"Counter-claim by defendant:--
(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the recuniary limits of the jurisdiction of the Court.
(2) to (4) *** *'* *** ***." 14-A. It is clear from a bare reading of the above provision that filing of counterclaim after filing of the written statement is not barred if the cause of action for the counter-claim had arisen before the filing of the written statement. However, in a case where the cause of action to file counter-claim arises after the filing of the written statement, the defendant is debarred from filing the counter-claim.
16. In case Mahendra Kumar v. State of Madhya Pradesh (AIR 1987 SC 1395) the Apex Court, while dealing with the provisions of Rule 6A(1) of the Code, held as under (Para 15) :
The next point that remains to be considered is whether Rule 6A(1) of O. VIII, Civil P. C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6A(1), Civil P. C. As the case of action for the counter-claim had arisen before the filing of the written statement, the counterclaim was, therefore, quite maintainable," 16. In view of the above position in law, the application of the appellant is not liable to be dismissed on the ground that it had been filed after the filing of the written statement.
17. The application, however, was filed before the 1st Appellate Court and no steps to file the counter-claim before the trial Court were taken. In view of the purpose of the provisions of Rules 6-A and 6-B, that the suit and the counter-claim must be tried together and disposed of by the same judgment, the application to file counter-claim after conclusion of the trial and in appeal, as is the case here, was not maintainable and is liable to be dismissed on this short ground.
18. There is no dispute that the suit in which the judgment and decree sought to be challenged were passed, was not a representative suit nor the appellant or his predecessor-in-interest was a party therein, therefore, the said Judgment and decree apparently could not have binding effect on the appellant. Thus, the counter-claim sought to be filed by way of amendment of the written statement is not at all necessary for the purpose of Just and final determination of the dispute between the parties. Even otherwise the claim sought to be set up by way of counter-claim is clearly time barred.
19. It was contended by the learned counsel for the appellant that an application for amendment of the pleadings cannot be dismissed on the ground that the claim sought to be raised by such amendment has become time barred because the question of limitation is a matter to be decided at the trial of the suit and cannot be taken into account at the time of deciding the application for amendment. In support of his submissions, the learned counsel has relied on Raghu Thllak D. John v. S. Rayappan, (2001) 2 SCC 472 : (AIR 2001 SC 699) in which during the pendency of the suit the defendant therein had entered into the house of the plaintiff unauthorisedly and demolished the compound wall. In view of these developments, the plaintiff filed an application for amendment of the plaint, which was rejected by the trial Court and the revision petition filed against the order of rejection was dismissed by the High Court inter alia on the ground that the amendment sought was barred by limitation. The Hon'ble Supreme Court relying on B. K. Narayana Pillal v. Parameshwaran Pillai, (2000) 1 SCC 712 : (AIR 2000 SC 614) held that the amendment applied for could not be declined because the dominant purpose of allowing the amendment is to minimize the litigation and that the plea that the relief sought by way of amendment was barred by time in the facts and circumstances of the case was arguable, therefore, such a plea could be made a subject matter of the issue in the suit after allowing the amendment.
20. In the case, referred to heretnabove, the question as to whether the claim sought to be raised by way of amendment was or was not within limitation was found to be arguable and it was not a case where the claim sought to be raised was clearly barred by limitation. Therefore, the above proposition does not lend support to the submission of the learned counsel for the appellant that the question of limitation cannot be gone into while deciding an application for amendment and even in cases where the claim is found to be clearly time barred amendment must be allowed and the question of limitation should be decided in the suit.
21. In view of the above discussion and the reasons stated therein, the dismissal of the application for amendment of the written statement cannot be held as Illegal so as to vitiate the impugned Judgment and decree.
SUBSTANTIAL QUESTION NO. 3:
22. The learned counsel for the appellant had contended that the lower Appellate Court had Ignored the relevant and material evidence on record and has taken into account the irrelevant evidence which led it to record the following erorneous findings :-
(i) That Des Raj is the mohatmim of the plaintiff.
(ii) That the plaintiff is the owner of the suit land.
It was further contended that had the irrelevant evidence been ignored as It is liable to be Ignored and the relevant and the material evidence not been Ignored, the Irresistible conclusions on the basis of the admissible evidence would be that the suit land was owned by one Nanak Chand, from whom it was purchased by Bakshi Ram. brother of the defendant who installed various machines over the suit land. On his death the defendant being his legal representative inherited the suit property and is thus owner in possession thereof. The plaintiff, who is claiming on the basis of a Will of said Nanak Chand, had not produced and proved the said Will nor there is legal evidence that Des Raj is the Mohatmim of the plaintiff. The learned counsel has referred to the evidence wrongly relied and the evidence wrongly ignored by the Courts below, and I shall refer to such evidence at the appropriate stage hereafter.
23. On the other hand, the learned counsel for the plaintiff had contended that the impugned judgment and decree was based on concurrent findings of facts recorded by the Courts below which cannot be Interfered in second appeal and in fact no substantial question is involved in this appeal which deserves to be dismissed on this short ground.
24. It may be pointed out at the very outset that it is well settled that an appeal under Section 100 of the Code is confined to a case where substantial question(s) of law is involved. A combined reading of Sections 100 and 101 of the Code prohibits second appeal on questions of fact unless in the process of arriving of a finding the Court below has committed substantial error of procedure or an error of law. A finding of fact recorded by the first Appellate Court is conclusive unless arrived at by committing either of the aforesaid errors. This principle will apply with greater force in a case of concurrent findings of facts recorded by the trial Court and the first Appellate Court. Even if the evidence is unsatisfactory or insufficient or has not been properly appreciated and the High Court is inclined to take a different view or the findings are open to doubt, or erroneous but there is some legal evidence to support the findings and there is no such error as aforesaid, the High Court shall riot interfere with such findings. It is against this settled position in law that the submissions for the parties are required to be examined and the case law cited in this regard need not be referred to.
25. In the case in hand, there is no dispute that initially the suit (and was owned by one Nanak Chand. As per the plaintiff, one Munu Ram was inducted as a tenant on the suit land by said Nanak Chand but subsequently the suit land was donated by him to the plaintiff who thus became the owner of the suit land. The case set up by the defendant is that his brother Bakshi Ram purchased the suit land from said Nanak Chand for Rs. 90/- and after death of Bakshi Ram, he inherited it being the sole legal heir of Bakshi Ram and thus became owner thereof.
26. The grievance of the defendant is that the material evidence produced by him in the form of documents had been ignored by the first appellate Court. A perusal of the record reveals that the defendant to prove his ownership and to disprove the ownership of the plaintiff over the suit land inter alia produced copy of affidavit Mark 'A', Form 10 marked 'A' and Mark 'B'. These documents had not been considered by the lower appellate Court and rightly so because these were not admitted in evidence for want of proof in accordance with law. The other documents produced by the defendant are receipts regarding payment of house tax/ arrears thereof Exts. D-l to D-5 and D-7 for the period 1981 to 1990. Some of them issued in favour of Bakshi Ram and some in favour of the defendant, copy of tax statement Ext. D-6, Electricity Bills Exts. DW-4/H to DW-4/L, Water Bills Exts. DW-4/M to DW-4/Q, receipts regarding payment of Chakki fee Exts. DW-4/R and DW-4/S. copy of order Ext. DW-4/T of the Settlement Officer in a case between defendant and said Munu Ram, copies of statements Exts. DW-4/U to DW-4/X and DW-4/A-2 to DW-4/A-4 and electoral cards Exts. DW-4/B and DW-4/C. The lower appellate Court has discussed these documents in the impugned judgment and conclusions about their evidentiary value have been recorded and such conclusions cannot be said to be unreasonable or perverse. It is not the case of the plaintiff that the structures standing on the suit land are owned by it. It is also not in dispute that the defendant is in possession of such structures. Therefore, payment of house tax, electricity bills, water bills, fee for running Atta Chakki therein, by the defendant or his brother and electoral cards supports only the admitted fact that the said structures are in possession of defendant and his brother Bakshi Ram had also been in possession thereof. However, it cannot be conclusively concluded on the basis of these documents that Bakshi Ram was and the defendant is the owner of the suit land. The copies of statements referred to above had not been formally proved despite objection by the plaintiff regardng their production and mode of proof. These statements, therefore, were rightly rejected by the lower appellate Court after assigning appropriate reasons therefor. Apart from the fact that the plaintiff had no opportunity to cross examine the makers of the said statements. Exts. DW-4/A-2. DW-4/A-4 and DW-4/U are not the statements made on oath. The order Ext. DW-4/T is passed in proceeding to which the plaintiff was not party . Therefore, this order in no way binds the plaintiff. It cannot be, therefore, held that the lower appellate Court ignored the aforesaid documents or appreciated them so as to arrive at an unreasonable or perverse finding.
27. It was argued by the learned counsel for the defendant that plaintiff had failed to lead evidence to prove its title and the lower appellate Court has wrongly and illegally relied on the revenue entries to hold that the plaintiff is the owner of the suit land and there is no legal evidence to prove that Des Raj is the Mohatmim of the plaintiff.
28. The mutation Ext. P-13. Rent Note Ext. P-2 admitted in evidence without objection by the defendant, statements of Madan Lal (PW1), Kundan Lal (PW 5) and Harbans Lal (PW 6) support the claim of the plaintiff that it is owner of the suit land, its Mohatmim is Des Raj and the suit land was initially held by Munu Ram on lease from Nanak Chand and subsequently as a lessee of the plaintiff. Even Karam Chand (DW-2) produced by the defendant has admitted that Des Raj is the Mohatmim of the plaintiff. Above all the defendant (DW 4) himself has admitted that in a case instituted in 1962 by Shanta Nand (the then Mohatmim of the plaintiff) against one Jaishi Ram he had appeared as a witness. The defendant has unequivocally and unarnbiguosly admitted that certified copy of statement made in the said suit is Ext. PX and the contents thereof are correct. In the said statement he has clearly admitted that the land, on which he had installed the Machine, was owned by Nanku (said Nank Chand) and he had taken it on annual rent of Rs. 18/- from said Nanku and after his death he had been paying the rent to Shanta Nand and that said Nanku had executed a Will in favour of Shanta Nand (admittedly the then Mohatmim of the plaintiff). Thus the defendant had admitted that he was in possession of the land as a lessee and was paying rent to the Mohatmim of the Mandir i.e. Shanta Nand. The defendant instead of withdrawing or explaining this admission in any other manner, has admitted It to be correct.
29. Apart from the above evidence, the lower appellate Court had drawn an inference adverse to the defendant from the fact that the defendant has admitted that regarding purchase of the suit land by Bakshi Ram a document was executed but such document was not produced. In fact, the version of the defendant regarding execution of such document is incorrect in view of contents of Para 5 of his reply to the application of plaintiff under Order 39, Rules 1 and 2 of the Code duly supported by his affidavit that the suit land was purchased by Bakshi Ram by an oral transaction.
30. The trial Court has also referred to the above evidence and its findings of facts have been concurred by the lower appellate Court.
31. It was contended by the learned counsel for the appellant that Des Raj has not been examined for the plaintiff, therefore, adverse inference against the plaintiff ought to have been drawn. Nanak Chand had given the suit land to the plaintiff when Shanta Nand was its Mohatmim and the present Mohatmim was at that time not dealing with the affairs of the plaintiff. Therefore, non appearance of the Des Raj, the present Mohatmim. as witness and appearance of his general attorney on his behalf in the face of the legal evidence available on record and relied by the Courts below will not justify drawing an Inference adverse to the plaintiff.
32. In view of the above discussion, it cannot be held that the Courts below have ignored any legal evidence or have relied on inadmissible or irrelevant evidence to arrive at the findings recorded by them or such findings are unreasonable and perverse. Therefore, in view of the legal position, as already set out in the earlier part of this judgment. the concurrent findings recorded and judgment and decree passed on the basis of such findings by the Courts below do not call for any interference by this Court.
33. As a result, this appeal merits dismissal and is accordingly dismissed. The parties, however, are left to bear their own costs.