Himachal Pradesh High Court
Jumla Jamindaran Village Pangi & Others vs Jumla Jamindaran Village Telangi & ... on 23 September, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
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CMPMO No. 94 of 2015
Judgment Reserved on : 18.9.2015
Date of Decision : September 23 , 2015
Jumla Jamindaran Village Pangi & others ...Petitioners
of
Versus
Jumla Jamindaran Village Telangi & others
rt ... Respondents
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the petitioner : Mr. Suneet Goel, Advocate, for the
petitioner.
For the respondent : Mr. Bhupinder Gupta, Sr. Advocate, with
Mr. Janesh Gupta, Advocate, for
respondents No. 1 and 2.
Mr. R. S. Verma, Addl. Advocate General
with Mr. R. M. Bisht, Dy. A.G. for
respondent No. 3.
Sanjay Karol, J.
Plaintiffs - petitioners herein, are aggrieved of the order dated 25.2.2015, passed by Civil Judge (Senior Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 2Division), Kinnaur at Reckong Peo, District Kinnaur, H.P. in Case No. 11-R/1 of 1999/2014, titled as Jumla Jamindaran .
Village Pangi & others vs. Jumla Jamindaran Village Telangi & others, whereby defendants'/respondents' application, filed under Order 6 Rule 17 C.PC., seeking amendment of the written statement, stands allowed.
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2. Reasons for allowing the same are reproduced herein under:rt "I have heard the ld. Counsel for the parties and have gone through the record file carefully. It is admitted fact that the State of H.P. arrayed as party after passing the order by the Hon'ble High Court and defendant moved the present application to take the legal objection as the suit is time barred and want to make some amendment in para No. 3 of the plaint that the Khewatdarans have customary rights of the passage having construct by them by cutting rocks and kucha dhank and using the same from the time immemorial. The present suit has been filed for declaration that the land comprised in khata khatauni No. 70 min/138 min, Khasra Nos. 1, 3, 7, 7/2 and 8 falls within the area of Check Pangi and the Right holders of Pangi have been exercising their customary rights of collecting newza, fuel wood, grass and grazing cattle from time immemorial, openly, peacefully, continuously and without any interruption and the order of the revenue Settlement ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 3 Collector dated 2.9.1983 is voild, illegal, and against the law and defendants interfering in their rights of .
the aforesaid land. The defendant No. 1 want to amend his written statement to the fact that there is passage which is being used by the inhabitants of village Telangi from the time immemorial, though, the amendment is belated stated, but it is settled law that amendment can be made even in the appeal of and moreover, the amendment is in the shape of legal objection and explanation in nature and I am of the opinion that no prejudice is going to be caused to rt the right of the plaintiff as they claimed independent right over the aforesaid khasra Nos. Even other party can compensate by way of cost. Thus, the application stand allowed subject to cost of Rs. 1000/-. Amended written statement is taken on record. Let file be put up for replication and framing of issues if any for 10.3.2015."
3. In the year 1999 plaintiffs filed a suit for declaration seeking order dated 2.9.1983 passed by the Settlement Collector, Kinnaur to be void, illegal, arbitrary, unjust, without jurisdiction and that the entries with respect to the suit land stands wrongly reflected in the territories of Up-Mohal Telangi in place of Mohal Pangi.
4. Plaint reflects the parties to have been litigating since the year 1984. In para - 3 of the plaint, plaintiffs ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 4 pleaded that prior to the year 1962, the entire area falling between the Old Hindustan Tibet Road and Satluj Road was .
a compact block with a natural boundary of kacha dhank and that village Telangi was situated on the other side with its residents having no access to the suit land. Whereas in response, defendants pleaded the boundary of village Pangi of and Telangi to be Bokhdhar and not kacha dhank.
5. The chequered history of this case reveals that rt the judgments and decrees passed by the courts below stood reversed by this Court and eventually with the impleadment of the State of Himachal Pradesh as a party/defendant, on remand, the matter is now pending before the trial Court. At such stage, on 25.9.2014, defendants filed the application in question, seeking the following amendments to their written statement:
(i). "That the suit of the plaintiffs is hopelessly time barred since the plaintiffs are challenging the order of settlement Collector decided on 02.09.1983 in the suit being filed on 23rd day of October, 1999, hence same is liable to be dismissed on this score only."
(ii) "There is a passage having constructed by cutting rocks through Kacha Dhank which have been used since time immemorial for to and fro to the suit ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 5 land by khewatdarans of village Telangi for exercising their customary rights."
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6. Application stood vehemently opposed inter alia on the ground that the issue of access through the kucha dhank stood adjudicated by the District Judge, hence such of plea being already in the knowledge of the defendants, cannot be allowed to be incorporated after a period of more rt than fifteen years. The endeavour was only to delay the proceedings.
7. Mr. Suneet Goel, learned counsel for the petitioners assails the order on the grounds that: (i) amendment sought to be incorporated is hopelessly delayed; (ii) alleging the same would change the nature of the controversy between the parties; (iii) which, in any case, is not necessary for determining the controversy in issue;
(iv) plea sought to be incorporated was well within the knowledge of the parties, hence amendment of the written statement is unwarranted; and (v) in any event, order which is unreasoned, is based on conjectures and surmises. He seeks reliance upon the decisions rendered by Hon'ble the Supreme Court of India in Voltas Limited vs. Rolta India ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 6 Limited, (2014) 4 SCC 516; Mashyak Grihnirman Sahkari Sanstha Maryadit vs. Usman Habib Dhuka & others, (2013) .
9 SCC 485; J. Samuel & others vs. Gattu Mahesh & others, (2012) 2 SCC 300 as also a Coordinate Bench of this Court in Civil Revision No. 3 of 2015, titled as Raj Kumar Mehra & another vs. Surinder Mohan, decided on 23.4.2015.
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8. On the other hand Mr. Bhupinder Gupta, learned Senior Counsel, rt ably assisted by Mr. Janesh Gupta, Advocate, defends by stating that the order being self explanatory, cannot be said to be unreasoned. As is held by the Court, amendment being clarificatory in nature does not prejudice the plaintiffs in any manner. In support, he relies upon the decisions rendered by Hon'ble the Supreme Court of India in Baldev Singh & others vs. Manohar Singh & another, (2006) 6 SCC 498; Usha Balashaheb Swami & others vs. Kiran Appaso Swami & others, (2007) 5 SCC 602;
North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (Dead) by LRs. (2008) 8 SCC 511.
9. Having considered rival contentions, Court is of the considered view that the impugned order lacks reasons.
There is no discussion as to how the amendment is ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 7 clarificatory in nature. The basis of forming an opinion that "no prejudice is going to be caused" cannot be inferred .
from the order. The objections raised by the plaintiffs in their response have also not been dealt with in any manner.
10. A Constitution Bench of Hon'ble the Supreme Court of India has laid down in Krishna Swami vs. Union of of India, (1992) 4 SCC 605 (Five Judges) that if a statutory or public authority/functionary does not record reasons, its rt decision would be rendered arbitrary, unfair, unjust and violative of Articles 14 and 21 of the Constitution. Reasons are links between the material, the foundation for their erection and the actual conclusions, demonstrative of the mind of the maker, activated and actuated with the rational nexus and synthesis with the facts considered and the conclusions reached. The proposition would apply with a greater vigour to judicial orders.
11. In the light of decision rendered in Raj Kumar Mehra (supra), Court is of the considered view that the impugned order needs to be quashed and set aside. In the said decision, relying upon the decision rendered by Hon'ble the Supreme Court of India in Kanti Associates Private ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 8 Limited & another vs. Masood Ahmed Khan & others, (2010) 9 SCC 496, Court held that the judgment/order .
without reasoning causes prejudice to the person against whom it is pronounced, as the litigant is unable to know the ground which weighs with the Court in rejecting or accepting the claim of the party. It also causes impediments of in his taking adequate and appropriate grounds before the higher Court in the event of challenge to the same.
rt
12. In the instant case, it cannot be said that interest of justice stands advanced with the application being allowed without assigning any reasons.
13. Hence the impugned order dated 25.2.2015, passed by Civil Judge (Senior Division), Kinnaur at Reckong Peo, District Kinnaur, H.P. in Case No. 11-R/1 of 1999/2014, titled as Jumla Jamindaran Village Pangi & others vs. Jumla Jamindaran Village Telangi & others, is set aside with a direction to the Court below to consider and decide the application afresh in accordance with law.
14. Needless to add, this Court has not expressed any opinion on the merits of the matter and has also not gone into the binding effect of the decisions referred to ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP 9 above, leaving it open for the Court below to consider and decide the application on its own merits.
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15. Parties are directed to appear before the Court below on 14.10.2015. An endeavour shall be made to dispose of the matter expeditiously. Trial expedited. Be completed within one year. Parties to fully cooperate.
of Records be immediately sent back.
Petition stands disposed of accordingly, as also rt pending applications, if any.
(Sanjay Karol), Judge.
September 23 , 2015 (PK) ::: Downloaded on - 15/04/2017 19:00:01 :::HCHP