Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 319 (HP)

MOTI LAL v. TOTA RAM

2000-12-15

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, C J.(Oral).- This revision is filed by the petitioner against an order passed by Sub Judge 1st Class, Manali at Kullu on 16th October, 1998inCMANo. 143/VI/98 in Civil Suit No. 112/98/95. The order was passed in an application filed by the petitioner under the provisions of Rules 3 and 9 of Order 22 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). 2. The case of the petitioner was that one Smt. Kali filed a suit against defendants-respondents for injunction and alternatively for possession. As stated in the plaint, she was the owner of land measuring 1-7 Bighas in khasra Number 3264, Khatta Khatauni No. 681/1124 incorporated in the Jamabandi for the year 1992-93 of Phati Nasogi, Kothi Manali, Tehsil and District Kullu and the defendants had no right, title or interest in the property. 3. During- the pendency of the suit, Smt. Kali died and that present petitioner made an application stating therein that he was the husband of by Kali and he should be permitted to prosecute the suit. As there was delay in making an application, a prayer was made to condone delay to set aside abatement of suit and to allow the petitioner-applicant to prosecute the matter further. 4. The application was resisted by the defendants on various grounds. It was contended that the present petitioner was not the husband on Bai Kali. Her husband was one Kali Ram and all throughout the proceedings, she had described her as widow of kali Ram. The petitioner had thus no right to file an application to prosecute the suit. It was also contended that the application was filed beyond the period of limitation and since there was no "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963, the petition was liable to be dismissed. 5. The learned Judge, after hearing the parties, dismissed the application. The said order is challenged in the present revision. 6. I have heard the. Learned counsel for the parties. 7. It appears that three reasons weighed with the learned Judge in dismissing the application filed by the petitioner. Firstly, according to the learned Judge, the application ought to have been filed within a period of ninety days. In the instant case, Kali died on 18th February, 1997, whereas the application was filed on 1 lth June, 1997. 7. It appears that three reasons weighed with the learned Judge in dismissing the application filed by the petitioner. Firstly, according to the learned Judge, the application ought to have been filed within a period of ninety days. In the instant case, Kali died on 18th February, 1997, whereas the application was filed on 1 lth June, 1997. Thus, there was delay of twenty two days in filing the application and no "sufficient cause" had been made out. Secondly, from oral as well as documentary evidence on record, there was nothing to show that the petitioner was husband of Kali. Hence, he had no right to come on record by substituting his name for the name of the plaintiff and to proceed with the suit. Thirdly, the so called transaction was violative of the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, and hence, it was illegal and unlawful. 8. The learned counsel for the petitioner contended that it is settled law that the connotation "sufficient cause" must be liberally construed so as to advance substantial justice. He submitted that delay of twenty two days cannot be said to be gross or unreasonable, for which the application deserved dismissal. The counsel also submitted that while deciding the question whether an application under Order 22 of the Code should be allowed or not, the Court, no doubt, has to hold an enquiry. But such enquiry should be of a summary nature and the learned Judge ought not to have been entered into merits of the matter. When prima-facie the petitioner was able to establish that he was husband of deceased Kali, his application ought to have been granted. By entering into larger question, the learned judge has committed an error of law as well as of jurisdiction. On applicability of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, it was submitted that a Civil Court has no jurisdiction to enter into the said question. But even if it is assumed that civil Court had jurisdiction in the matter, it could not have been considered at the time of deciding an application under Order 22. On applicability of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, it was submitted that a Civil Court has no jurisdiction to enter into the said question. But even if it is assumed that civil Court had jurisdiction in the matter, it could not have been considered at the time of deciding an application under Order 22. On all these grounds, it was submitted that the order is not in consonance with law and that there is an illegality as well as material irregularity in exercise of jurisdiction by a Court subordinate to the High Court and it deserves to be interfered with under Section 115 of the Code. 9. The learned counsel for the respondents, on the other hand, supported the order passed by the trial Court. It was submitted that it is, no doubt, true that expression "sufficient cause" should be construed liberally but the petitioner has not stated all the facts candidly. In the application, it was stated by the petitioner that he was not aware of the litigation pending in the Court. If the petitioner is the husband of Kali, as asserted by him, it is not possible to believe that he was not aware of a suit filed by his wife. The petitioner thus has not stated full and complete facts in the application. Moreover, no ground, much less sufficient ground has been made out by the petitioner. It was also argued that while deciding an application under Order 22 of the Code, the Court has to consider other relevant circumstances such as prima facie case put forward by the petitioner. In this connection, my attention was invited by the learned counsel for the respondents, to a cause-title in a plaint as well as other documents, wherein, the plaintiff Kali described her as widow of Kali Ram and nowhere the name of the petitioner has been referred to. If after death of Kali Ram, she had married to the present applicant, obviously his name ought to have been mentioned by her. The trial Court, therefore, rightly considered that aspect. Even from the evidence of the petitioner MOti Lai, AW 2 Lai Chand and AW3 Chuhru Ram, it was not proved that the petitioner was husband of Kali. It was further submitted that the Court was right in considering and keeping in mind the provisions of Section 118 of the Land Reforms Act. Even from the evidence of the petitioner MOti Lai, AW 2 Lai Chand and AW3 Chuhru Ram, it was not proved that the petitioner was husband of Kali. It was further submitted that the Court was right in considering and keeping in mind the provisions of Section 118 of the Land Reforms Act. 10. After considering the rival contentions of the parties, in my opinion, the petition deserves to be allowed. So far as the first ground is concerned, in my opinion, too technical view has been taken by the trial Court. It is true that an application for setting aside abatement ought to have been filed within ninety days and there was delay of twenty two days. In the facts and circumstances of the case, in my opinion, it cannot be said that delay of twenty two days can be said to be so unreasonable or gross which could not be condoned. Reference was made by the learned counsel for the petitioner to a decision of the Supreme Court in Ram Sumiran and others v. D.D.C. and others, AIR 1985 SC 606. In that case, an application to set aside abatement was filed after six years. Considering the fact, however, that the petitioner was an illiterate person, the Apex Court held that the High Court was wrong in refusing to set aside abatement. In the instant case also, the petitioner is an illiterate person. That apart, when delay was not even for a month, it cannot be said that there is negligence, want of bona fides or inaction on the part of the petitioner. That ground, therefore, cannot be sustained. 11. So far as the prayer of the petitioner to prosecute the suit is concerned, he asserted that Kali was his wife. After death of Kali Ram, she married the petitioner and both were staying as husband and wife. It was also his case, that a Will was executed in his favour which was registered. In this connection, he had made a statement as AW1, which was further corroborated by AW2 and AW3. After death of Kali Ram, she married the petitioner and both were staying as husband and wife. It was also his case, that a Will was executed in his favour which was registered. In this connection, he had made a statement as AW1, which was further corroborated by AW2 and AW3. The trial court considering the fact that since none of the witnesses stated to have been present at the time of marriage, and execution of lkrarnama (marked D) had been examined, adverse inference should be drawn under Section 114 of the Evidence Act and it could not be held that the petitioner was the husband of Kali. In my considered opinion, on such enquiry can be contemplated at this stage as held by this Court in Suraj Mani and another v, KishoriLal, 1977 Sim. L.C. 91. In Suraj Mani, this court observed that enquiry under Order 22, Rule 5 is of a summary nature and findings recorded at such enquiry are not conclusive so as to operate res judicata in subsequent proceedings. Similar view has been taken by the High Court of Punjab and Haryana in Mangat and another v. Surja, AIR 1979 P & H 194. 12. Regarding applicability or otherwise of Section 118 of the Land Reforms Act, in my opinion, the Court ought not to have entered into the question at the stage of deciding the application under Order 22 of the Code. 13. It is, no doubt, contended by the learned counsel for the respondents that in the grounds of revision application no specific contention has been taken against the reasons jvhich weighed with the trial Court in dismissing the application. In my view, however, when the order passed by the trial Court is not in accordance with law and there is jurisdiction^ error in exercise of power by the trial Court and the petitioner had been non-suited on a ground not sustainable at law, an order cannot be allowed to stand. If such order is allowed to stand, serious prejudice will be caused to the plaintiff. Hence, the decision cited by the learned counsel for the respondent in Smt. Pamila Kapur and others v. Khem Singh, (1996) 2 Sim. L.C. 6, would not help the respondents, wherein it has been held that the High Court will n6t interfere with a decision of a subordinate Court even if it is wrong in law. 14. Hence, the decision cited by the learned counsel for the respondent in Smt. Pamila Kapur and others v. Khem Singh, (1996) 2 Sim. L.C. 6, would not help the respondents, wherein it has been held that the High Court will n6t interfere with a decision of a subordinate Court even if it is wrong in law. 14. For the aforesaid reasons, the petition deserves to be allowed and is, accordingly allowed. The order passed by the trial court in C.M.A. No. 143/VI/98 dated October 16, 1998, is hereby set aside. The application filed by the petitioner is order to be allowed, abatemet of the suit is set aside and he is permitted to prosecute the suit filed by deceased Kali. 15. Before parting with the matter, I may clarify that all the observations have been made only for deciding this revision and I may not be understood to have expressed any opinion on the merits of the matter. As and when the suit will come for hearing, it will be decided on its own merits without being inhibited by the observations made in this order. The registry is directed to send the record along with a copy of this order to the trial Court. The trial Court thereafter will give an appropriate date to the parties for further hearing. No costs.