Himachal Pradesh High Court
Surender Kumar vs Prem Lal Bambra S/O Sh. Gopal Dass & ... on 21 November, 2016
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Civil Revision Petition No. 124 of 2016
Order Reserved on 10.11.2016
Date of order: 21.11.2016
.
Surender Kumar, S/o late Sh. Jamna Dass
....Revisionist/Plaintiff
Versus
Prem Lal Bambra S/o Sh. Gopal Dass & others
....Non-revisionists/Defendants.
of
Coram:
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting?1 Yes
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For revisionist : Mr. Sanjeev Kuthiala Advocate
For non-revisionist No.1 : Mr. T.S. Chauhan Advocate.
For non-revisionists No. 2 & 3: Mr. R.K. Sharma, Dy. A.G.
For non-revisionists No. 4 to 9: None
P. S. Rana, J.
Order: Present civil revision petition is filed under Section 115 Code of Civil Procedure 1908 against order dated 28.7.2016 passed by learned Trial Court in Civil Suit No. 5-1 of 2014 title Surender Kumar vs. Prem Lal Bambra & others whereby learned Trial Court closed the evidence of plaintiff by order of Court.
Brief facts of the case:
2. Surender Kumar plaintiff filed civil suit for declaration that plaintiff and proforma-defendants are owner in possession of suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 2 land being Bhakra Dam Oustees and are entitled for regularization of possession in terms of order passed by High Court of H.P. in CWP No. 318 of 1999 decided on 29.6.2009. Alternative relief also sought that .
plaintiff and proforma-defendants have become owner of land by way of adverse possession. Additional relief also sought to the effect that order of co-defendant No.3 dated 20.8.2013 be declared as null and void having no effect on right, title and interest of plaintiff and of proforma-defendants. Additional relief also sought that order of Collector Sub Division Bilaspur dated 13.6.2013 be also declared as null and void being contrary to order of learned Divisional rt Commissioner dated 6.12.2006. Additional relief also sought for restraining contesting defendants permanently from interfering in the suit land in any manner. Additional relief also sought that if possession of suit land or part thereof is taken forcibly by contesting defendants then same be restored to plaintiff and proforma-
defendants.
3. Per contra written statement filed on behalf of co-defendant No.1 pleaded therein that civil suit is not maintainable and is bad for non-joinder of necessary parties. It is pleaded that plaintiff as well as proforma-defendants have concealed true facts and did not approach the Court with clean hands and suit deserves to be dismissed with special costs of Rs. 5,00,000/- (Rupees five lacs) under Section 35-A of Code of Civil Procedure. It is further pleaded that plaintiff and proforma-defendants have filed more than 5-6 cases ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 3 before various courts. It is further pleaded that proper court fee not filed and civil court has no jurisdiction to decide the present suit as order challenged in the suit was already decided by Hon'ble High .
Court on dated 25.3.2015 in CWP No. 49 of 2014. It is further pleaded that LPA No. 59 of 2015 and LPA No. 164 of 2015 have also been decided in favour of co-defendant No.1 Prem Lal Bambra by the High Court in which plaintiff as well as proforma-defendants have of been restrained to interfere in the suit land. It is further pleaded that plaintiff and proforma defendants are estopped to file the suit by their own act and conduct. Prayer for dismissal of suit sought. Plaintiff rt filed replication and re-asserted allegations mentioned in the plaint.
4. As per pleadings of parties following issues were framed by learned Trial Court on dated 1.12.2015:-
1) Whether plaintiff and proforma defendants are owners in possession of the suit land by way of adverse possession as alleged? OPP.
2) Whether order of defendant No.3 dated 20.8.2013 is null and void as alleged? OPP.
3) Whether plaintiff is entitled for relief of permanent prohibitory injunction as alleged? OPP.
4) Whether plaintiff is entitled for relief of possession if dis-
possessed during the pendency of the suit land OPP.
5) Whether suit of plaintiff is not maintainable? OPD.
6) Whether suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
7) Whether plaintiff as well as proforma defendants have concealed material facts and not approached the Court with clean hands? OPD.
::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 48) Whether plaintiff has no locus-standi to file the present suit ? OPD.
9) Whether plaintiff has no cause of action to file the present suit? OPD.
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10) Whether plaintiff has not affixed the proper court fee upon the suit land? OPD.
11) Whether this Court has no jurisdiction to hear and decide the present suit? OPD.
12) Whether plaintiff and proforma-defendants are stopped from filing the present suit by their own acts and of conduct? OPD.
13) Relief.
5. Learned Trial Court thereafter framed following additional rt issues on dated 26.2.2016:-
4A) Whether plaintiff and proforma defendants are owner in possession of the suit land being Bhakhra Dam Oustees?
OPP 4B) Whether plaintiff and proforma defendants are entitled for the regularization of possession of the suit land in view of CWP No. 318/99 dated 29.6.2009 passed by the Hon'ble High Court? OPP.
4C) In alternative, whether plaintiff and proforma defendants are entitled for the possession of the suit land by way of adverse possession? OPP.
4D) Whether suit land is not acquired for the public purpose and is acquired only to capture a good parcel of the land in the town? OPP.
4E) Whether file No. 130 of encroachment is also pending with the government for regularization of the suit land if so its effect? OPP.
4F) Whether exchange of land in khasra No. 1328/1 measuring 92.44 Sq. mtrs. situated at village Kosrian is illegal? OPP.
::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 54G) Whether land in exchange given to the defendants in the town is against the perpetual lease? OPP.
4H) Whether order of Sub Divisional Collector Bilaspur dated 13.6.2006 is wrong, illegal, null and void if so its effect? OPP.
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4I) Whether plaintiff and proforma defendants have not surrendered the possession of the suit land before the Tehsildar if so its effect? OPP.
Thereafter learned Trial Court listed the case for plaintiff evidence. On 28.7.2016 the evidence of plaintiff was closed by of learned Trial Court by order of Court. Revisionist aggrieved against order dated 28.7.2016 filed present revision petition.
6. rt Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionists and Court also perused entire record carefully.
7. Following points arise for determination:
1) Whether civil revision petition filed under Section 115 Code of Civil Procedure 1908 is liable to be accepted as mentioned in memorandum of grounds of revision petition?
2) Relief.
Findings upon Point No.1 with reasons:
8. Submission of learned Advocate appearing on behalf of revisionist that learned Trial Court has committed material irregularity by way of closing evidence of plaintiff despite fact that plaintiff filed requisite list of witnesses and diet money in accordance ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 6 with law is decided accordingly. In the present case it is proved on record that issues were framed by learned Trial Court on dated 1.12.2015 and thereafter additional issues were framed by learned .
Trial Court on dated 26.2.2016. It is also proved on record that plaintiff filed list of witnesses along with diet money in the Court on 11.12.2015. Plaintiff filed the list of witnesses within two weeks after framing of issues by Court. It is also proved on record that in of the list of witnesses plaintiff mentioned name of ten witnesses. Some witnesses are official witnesses and some witnesses are non-official witnesses. It is also proved on record that plaintiff has given up rt witnesses No. 1 and 10 mentioned in the list and has examined witnesses No. 3 and 6 mentioned in the list of witnesses. It is also proved on record that diet money to the tune of Rs. 3000/- (Rupees three thousand) also deposited in the Court by plaintiff vide Sr. No. 35 dated 29.12.2015. Court is of the opinion that after receiving the list of witnesses and after receiving the diet money from plaintiff learned Trial Court was under legal obligation to summon witnesses in accordance with law and to procure attendance of witnesses in the Court. It is also proved on record that on dated 14.1.2016 PWs Sh.
Ajay from the office of Divisional Commissioner Mandi and Sh. Satish from the office of Deputy Commissioner Bilaspur were present in the Court but Court did not examine the witnesses simply on the ground that application under Order VI Rule 17 read with Section 151 CPC filed in civil suit. It is held that learned Trial Court was under legal ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 7 obligation to examine PWs Ajay and Satish who were present in the Court in civil suit but learned Trial Court did not examine these witnesses simply on the ground that application under order VI Rule .
17 CPC filed in the Court. It is well settled law that proceedings of main civil suit should not be stopped merely on the ground that some miscellaneous application is filed by party in the civil suit. Learned Trial Court did not procure presence of official and non-official of witnesses mentioned in the list despite receiving diet money from plaintiff and learned Trial Court closed the evidence of plaintiff by order of Court on dated 28.7.2016 on the ground that present civil rt suit is time bound as per directions of learned District Judge Bilaspur dated 2.7.2015. It is held that learned Trial Court was under legal obligation to seek extension of time for disposal of civil suit from learned District Judge Bilaspur. It is held that it is duty of the Court to procure attendance of witnesses mentioned in the list after receiving diet money and learned Trial Court shifted the onus of procuring presence of witnesses mentioned in the list upon plaintiff.
It is held that duty of the court cannot be shifted upon party. It is one of the cardinal principles of natural justice that proper opportunity should be afforded to the party to produce their evidence and state their case before Court and Court ought to exercise discretion in favour of production of witnesses. It is also well settled law that when a party used dilatory tactic at the time of judicial proceedings by seeking adjournments to produce evidence the Court ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 8 is competent to refuse production of evidence. See AIR 1967 Mysore 37 Syed Yasin vs. Syed Mohd. Hussain. See AIR 1953 Patana 8 Tara Prassana vs. Jhaman Ram & others. It is also proved on .
record in present case that learned Trial Court framed additional issues No. 4A to 4I on dated 26.2.2016 in C.S. No. 5-1 of 2014 but learned Trial Court did not direct parties to file additional list of witnesses relating to additional issues framed by learned Trial Court.
of It is well settled law that when additional issues are framed by Trial Court in Civil Suit then parties acquired legal rights to file additional list of witnesses to prove additional issues framed by Court.
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9. Submission of learned Advocate appearing on behalf of non-
revisionists that plaintiff has sought nine adjournments for plaintiff evidence on dated 26.12.2015, 8.1.2016, 14.1.2016, 26.2.2016, 14.3.2016, 1.4.2016, 16.4.2016, 16.6.2016 and 28.7.2016 and on this ground revision petition filed by revisionist be dismissed keeping in view the provisions of Order XVII CPC is decided accordingly. It is well settled law that as per Order XVII CPC Court should not grant adjournments for more than three times to a party during hearing of the suit. Court is of the opinion that rider of three adjournments applies upon the party when party committed fault by act and conduct. In the present case it is proved on record that plaintiff has submitted list of witnesses with a prayer to deposit diet money within fortnight after framing of issues. It is proved on record that Court admitted the list of witnesses filed by plaintiff and also received diet ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 9 money to the tune of Rs. 3000/- (Rupees three thousand) for summoning witnesses vide Sr. No. 35 dated 29.12.2015. It is held that after receiving list of witnesses by the Court and after receiving .
diet money from plaintiff onus was upon the Court to procure presence of witnesses in the Court in accordance with law. It is held that plaintiff cannot be penalized for the non action of Court. It is held that once list of witnesses and diet money received by the Court of then onus is shifted upon the Court to procure presence of witnesses mentioned in the list in accordance with law.
10. Submission of learned Advocate appearing on behalf of non-
rt revisionists that present civil suit is time bound as per directions of learned District Judge Bilaspur (H.P.) and on this ground revision petition filed by revisionist be dismissed is also rejected being devoid of merit for the reasons mentioned hereinafter. It is held that learned Trial Court was under legal obligation to seek extension of time from learned District Judge Bilaspur after mentioning reasons for non decision of the civil suit in time bound manner as directed by the learned District Judge.
11. Submission of learned Advocate appearing on behalf of non-
revisionists that correct address of witnesses were not filed by plaintiff and on this ground revision petition be dismissed is decided accordingly. It is held that non-revisionists can be compensated with heavy costs for non filing of correct address of witnesses by revisionist.
::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 1012. Submission of learned Advocate appearing on behalf of non-
revisionists that on dated 28.7.2016 plaintiff filed an application for adjournment of case despite last opportunity granted by the Court .
and on this ground revision petition be dismissed is decided accordingly. There is recital in the order sheet dated 28.7.2016 that application was filed by vice counsel for plaintiff with plea that original counsel Sh. D.R. Sharma had gone to Chandigarh to attend a of case. The original counsel of the plaintiff Sh. D.R. Sharma was present at 10.30 a.m. in the Court but when case was called at later stage then application for adjournment was filed on the ground that rt original counsel Sh. D.R. Sharma had gone to Chandigarh to attend the case. It is well settled law that party cannot be penalized for the fault of Advocate. In view of the above stated facts point No.1 is decided accordingly.
Point No.2 (Relief).
13. In view of findings upon point No.1 above order of learned Trial Court dated 28.7.2016 is set aside with direction that learned Trial Court will procure presence of witnesses mentioned in the list in accordance with law through special messenger. It is further ordered that learned Trial Court will also use coercive method for the presence of witnesses mentioned in the list of witnesses in accordance with law. It is further held that learned Trial Court will record entire testimonies of witnesses mentioned in the list filed by plaintiff within one month after receiving the file. Costs to the tune of ::: Downloaded on - 15/04/2017 21:35:36 :::HCHP 11 Rs. 3000/- (Rupees three thousand) is also imposed upon the revisionist. In view of the fact that present case is of senior citizen learned Trial Court will dispose of civil suit No. 5-1 of 2014 title .
Surender Kumar vs. Prem Lal Bambra & others within two months after receiving file. Parties are directed to appear before learned Trial Court on 12.12.2016. Observations will not affect merits of civil suit in any manner. Files of learned Trial Court be sent back forthwith of along with certified copy of order. C.R. No.124/2016 is disposed of.
Pending application(s) if any also disposed of.
November 21, 2016
rt (P. S. Rana),
(kck) Judge.
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