Himachal Pradesh High Court
Sanjay Prashar And Others vs Subhash Chander And Another on 3 March, 2020
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 540 of 2018 .
Decided on: 03.03.2020.
Sanjay Prashar and others ...Appellants.
Versus Subhash Chander and another ...Respondents For the Appellants : Mr. Ajay Sharma, Senior Advocate, with Mr. Rakesh Chaudhary, Advocate.
For the Respondents : Mr. Suneet Goel and Ms. Parul Negi, Advocates.
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
No Whether approved for reporting?1 Justice Tarlok Singh Chauhan, Judge.
It is not in dispute that the order passed by the Settlement Collector dated 28.7.2008 was not assailed in the suit that was instituted by the plaintiff, which eventually came to be dismissed vide judgment and decree dated 7.3.2013.
2. In such circumstances, I really wonder how the parties could have been put to trial by the learned Appellate Court on the following additional issues:
(6-A) Whether in view of order passed by Settlement Collector, Kangra, dated 28.07.2008, the defendants are owners in possession of the suit land? OPD 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 04/03/2020 20:26:11 :::HCHP 2 (6-B) Whether plaintiff wants to derive advantage on the basis of wrong revenue entries as alleged? OPD .
(6-C) Whether the order passed by Settlement Collector, Kangra, dated 28.07.2008 is void, abinitio and without jurisdiction? OPP
3. A perusal of the impugned order passed by learned District Judge, Kangra at Dharamshala, reveals that the ostensible reason in framing additional issues appears to be given in para-17 of the judgment, which reads as under:
"17. Since the Settlement Collector order has been specifically pleaded and relied upon by the defendants in the written statement and has been challenged by the plaintiff in replication, therefore, ld. Trial Court ought to have framed relevant issues in view of the pleadings of the parties in respect of the Settlement Collector order Ex. DW3 dated 28.07.2008. The suit of the plaintiff has been dismissed by ld. Trial Court simply on the ground that plaintiff has not prayed for any declaration to set aside the aforesaid order of Settlement Collector. To my mind, ld. Trial Court has fallen into error as the specific issues relating to the Settlement Collector have not been framed especially when there are pleadings on record as to the aforesaid order of Settlement Collector. Ld. Trial Court has taken too technical view, to my mind the courts are to impart justice and in the interest of justice, it is desirable to frame relevant issues relating to the Settlement Collector order and give opportunity to both the parties to defend and challenge the validity of aforesaid order, only then the end of justice would meet. It is the duty of the Court to frame relevant issues and ::: Downloaded on - 04/03/2020 20:26:11 :::HCHP 3 afford due opportunity to the parties to lead evidence on the issues framed in view of the pleadings of the parties. A serious prejudice has been caused to the plaintiff by .
not framing the relevant issues, because the suit of the plaintiff has been dismissed."
4. To say the least, the reasonings as accorded are absolutely fallacious and contrary to the record because the plaintiff had never assailed the order passed by the Settlement Collector.
Reference to a document essentially does not mean that the document or order has been challenged. It was for the plaintiff to have specifically assailed the order of Settlement Collector if at all aggrieved and, therefore, in absence of any challenge there was no question for the learned first Appellate Court to frame the additional issues with regard to the validity of the order passed by the Settlement Collector.
5. This Court has no hesitation to conclude that the learned first Appellate Court has gone totally astray and exceeded its jurisdiction in framing the said issues.
6. In view of the aforesaid discussion, I find merit in this appeal and accordingly the same is allowed and the order passed by learned first Appellate Court on 01.10.2018 remanding the matter to the trial Court with the direction to afford opportunity to both the parties to lead evidence on the additional issues framed, is set-aside.
7. Since the suit was instituted more than a decade back i.e. on 10.12.2008, the learned first Appellate Court is directed to ::: Downloaded on - 04/03/2020 20:26:11 :::HCHP 4 decide the appeal as expeditiously as possible and in no event later than 30th April, 2020.
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8. The parties through their counsel(s) to appear before the learned first Appellate Court on 17.03.2020. Records be sent back forthwith so as to reach the Court well before the date fixed.
9. The appeal is disposed of in the aforesaid terms, so also the pending application(s), if any.
3rd March, 2020.
(GR)
r to ( Tarlok Singh Chauhan )
Judge
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