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2011 DIGILAW 2528 (HP)

Nettar Singh v. Brahma Nand

2011-11-03

SURJIT SINGH

body2011
JUDGEMENT Surjit Singh, Judge(Oral) Petitioners are the defendants in a suit instituted for permanent prohibitory injunction, as also possession, by plaintiff-respondent Brahma Nand. Issues were framed in the case, second time, on 16th October, 2009, after the plaintiff-respondent amended his plaint. Thereafter, plaintiff adduced evidence. He concluded the same on 29th April, 2011 and then the matter was adjourned to 3rd June, 2011, for the evidence of petitioner No.1. He did not produce any evidence on that date. His counsel appeared and sought adjournment, on the plea that he (petitioner No.1) had suddenly fallen sick. Matter was adjourned to 12th July, 2011, on payment of costs of ‘50/-. On that date also, it was stated that the petitioner had suddenly fallen sick and adjournment was sought, which was allowed subject to the payment of costs of !100/- and the matter was adjourned to 4th August, 2011. On that date also, adjournment was sought, on the same plea as on two earlier dates, and the matter was adjourned to 19th August, 2011, on payment of costs of !300/-. 2.On 19th August, 2011, an application, under Order 8 Rule 1 of the Code of Civil Procedure, was moved on behalf of the petitioners, seeking leave of the Court to place on record and also to prove certain documents, which consisted of an order, passed by Assistant Collector, under Section 37 of the H.P. Land Revenue Act, which is dated 10th November, 2010 and some entries in revenue papers, which were corrected, on the basis of this order, as also the initial entries in the revenue papers and the evidence, on which the aforesaid order dated 10th November, 2010 was based.That application was dismissed, on the very day of its filing, vide order Annexure P-6. Petitioners are aggrieved by this order. So, they have approached this Court, under Article 227 of the Constitution of India. 3.I have heard learned counsel for the parties and one through the record. 4.Learned counsel appearing for the respondent supports the order of the trial Court, on the ground that there is no jurisdictional error in the passing of the impugned order and also on the ground that the petitioners having not paid the costs, awarded by the trial Court, on 3rd June, 2011, 12th July, 2011 and 4th August, 2011, cannot succeed in the present petition. 5.Petitioners’ counsel had sought adjournment on 3rd June, 2011, 12th July, 2011 and 4th August, 2011, on the ground that petitioner No.1, who was to be examined as his witness, had been sick. This plea of the petitioners was not rejected by the trial Court, though adjournments were granted, subject to payment of costs. The order, which the petitioners wanted to place on record and to prove, came into being, after the filing of the written statement by them and, therefore, the bar contained in sub-rule (3) of Rule 1 of Order 8 of the Code of Civil Procedure, could not have been pressed into service by the plaintiff-respondent and the learned trial Court has also not said so in its order. 6.Application has been rejected by the trial Court, without taking into account the fact that the order could not have been filed with the written statement, as it came to be passed after the written statement was filed and issues framed. Reason given by the trial Court, for rejection of the application, is that the case is an old one and included in the target conveyed to it by the High Court. This could not have been a ground for rejecting the application.Targets, fixed by the High Court, on Administrative Side, for expeditious disposal of cases, cannot be a ground for rejecting an application, which is otherwise required to be allowed, as this would result in miscarriage of justice. Prime function of the Courts is to do justice and administrative instructions issued from this Court cannot be a ground for not passing an order, which is otherwise required to be passed in the interest of justice. 7.In view of what has been stated hereinabove, submission that there is no jurisdictional error in the matter, cannot be upheld. 8.As regards the second submission that costs have not been paid by the petitioners and the suit deserves to be decreed on this score, the plea cannot be gone into, while deciding the present petition. Let the plaintiff-respondent take such a plea before the trial Court, by making an application. 9.For the foregoing reasons, present petition is allowed, impugned order is set aside, petitioners’ application, purporting to be under Order 8 Rule 1 of the Code of Civil Procedure is allowed and they are permitted to place the aforesaid documents on record and also to prove them, while leading evidence. 9.For the foregoing reasons, present petition is allowed, impugned order is set aside, petitioners’ application, purporting to be under Order 8 Rule 1 of the Code of Civil Procedure is allowed and they are permitted to place the aforesaid documents on record and also to prove them, while leading evidence. Pending application also stands disposed of. Parties are directed to appear before the trial Court on 8th December, 2011.