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2013 DIGILAW 1716 (RAJ)

State of Rajasthan v. Bakshunath

2013-09-25

P.K.LOHRA

body2013
JUDGMENT 1. - Appellants/defendants have preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, 'CPC') for assailing the impugned judgment and decree dated 19th of September 2012 passed by the learned District Judge, Rajsamand (for short, 'learned trial Court'). 2. The respondents-plaintiffs laid a civil suit for damages against the appellants for a sum of Rs. 1,10,000/- inter-alia, on the ground that a clay-built (Kuccha) wall, which was constructed on the Khatedari land of the plaintiffs, was illegally demolished by the appellants by presuming it to be an encroachment. The suit was contested by the appellants and the averments contained in the plaint were denied. In the return, the appellants pleaded that the respondents-plaintiffs have designed the suit cleverly for seeking declaration from the Court that part of the 253 bigha land, situated at village Ghanvera (Kanvera), of Araji No. 2, measuring 10 bighas, be declared as his Khatedari land, therefore, such a relief cannot be granted to the respondents. Alleging specifically in the written statement that there was illegal encroachment of the respondents on the land in question and the same has been removed by the appellants after following due process of law, it was prayed that the suit merits dismissal. 3. On the basis of pleadings of the rival parties, the learned trial Court settled three issues for determination and the rival parties led their evidence. For substantiating the claim, the respondents examined five witnesses and[3] also produced documentary evidence in the form of order passed by this Court, trace map of the site, authenticated copies of Jamabandi and other ancillary documents for proving their right, title and possession. On behalf of appellants, three witnesses were examined and five documents were produced. The learned Court below, after examining the documentary and oral evidence of the rival parties, has recorded a categorical finding that the wall in question was constructed by the respondents-plaintiffs within the four corners of the land owned by them and its demolition by the appellants has caused damages to the respondents. The learned Court below, after examining the documentary and oral evidence of the rival parties, has recorded a categorical finding that the wall in question was constructed by the respondents-plaintiffs within the four corners of the land owned by them and its demolition by the appellants has caused damages to the respondents. On critical analysis of the evidence of rival parties, the learned trial Court found that even if the action of the appellants is presumed to be bona fide, the damage suffered by the respondents is required to be compensated and while moderately assessing the compensation, the learned trial Court allowed the claim and passed a decree for a sum of Rs. 60,000/- only. 4. Learned Government Counsel Mr. Sandeep Bhandawat has argued that the learned Court below has not thrashed out the matter in its entirety, and appreciation of evidence by the learned Court below is also not proper, and[4] therefore, the impugned judgment is liable to be reversed and set aside. Assailing the impugned judgment, the learned counsel would urge that the entire proceeding for demolition of the wall in question was carried out in accordance with law, and therefore, in these circumstances no motive can be attributed to the authorities of the appellant so as to saddle damages on the State. Mr. Bhandawat has also urged that the learned Court below having found that it was a bonafide action of the appellants, it was not desirable for it to award damages to the respondents. 5. I have heard the learned counsel for the appellants and perused the impugned judgment. 6. A glance at the impugned judgment makes it crystal clear that the learned trial Court has evaluated the evidence and other materials on record and thereafter it has concluded that demolition of the disputed wall was improper. The learned trial Court has examined the matter in all fairness while recording a definite finding that the action of the appellants was bona fide but at the same time the learned Court below has thought it proper to award[5] reasonable damages for the loss suffered by them and the mental torture due to the said demolition. In totality, the learned trial Court has awarded a meager sum of damages to the tune of Rs. 60,000/- only. In totality, the learned trial Court has awarded a meager sum of damages to the tune of Rs. 60,000/- only. This Court is quite conscious about this fact that this appeal is under Section 96 CPC and adhering to the normal practice, the record is to be summoned and a notice is required to be given to the learned trial Court. However, by virtue of Order 41, Rule 11 (1) CPC (as amended w.e.f. 1.7.2002), if the Court is prima facie satisfied that there is no substance in the appeal, the same can be dismissed at the admission stage after hearing the counsel for the appellant. Rule 11(1) of Order 41 CPC is reproduced as infra: 11. Power to dismiss appeal without sending notice to lower court.- (1) The Appellate Court, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. 7. A Division Bench of Allahabad High Court in case of Shyam Prasad Mishra & Anr. v. Vijay Pratap Singh and Anr., AIR 2006 Allahabad 56 , while construing Order 41, Rule 11 CPC, has held that first appeal cannot be admitted as a matter of right, or even under convention unless the Court is satisfied about merits of the case. The Court made following observations in Para 14 & 15 of the verdict: 14. A bare perusal of reading of the aforesaid provision make it clear the First Appeal filed under Section 96 CPC is subject to Order 41, Rule 11 CPC and can be dismissed by the court after hearing the appellants or his pleader. It clearly means that an appeal under Section 96 CPC is not to be admitted as a matter of right or even under convention unless court is satisfied about the merits of the Appeal. 15. Order 41, Rule 11 has been enacted by the Legislature for the appellate Court for the same purpose and object as Order 7, Rule 11 is for the trial court. Thus an appeal filed under Section 96 CPC, requires hearing under Order 41, Rule 11 CPC, by the appellate court to satisfy itself about the merits of the same. 15. Order 41, Rule 11 has been enacted by the Legislature for the appellate Court for the same purpose and object as Order 7, Rule 11 is for the trial court. Thus an appeal filed under Section 96 CPC, requires hearing under Order 41, Rule 11 CPC, by the appellate court to satisfy itself about the merits of the same. The principle of law laid down by the Hon'ble Apex Court in the case of T. Arvindandam (supra) with regard to frivolous litigations shall apply with equal force to the hearing of an appeal under Order 41, Rule 11 CPC. Thus it is the duty of every court to examine the appeal at the stage of Order 41, Rule 11 CPC and to dismiss the same in exercise of power conferred by the said provision, if it lacks merit and does not deserve admission. No alleged convention or practice can be allowed to override the mandatory provision of the statute. Accepting the argument of the learned counsel for the appellant would mean nullifying the mandate of Order 41, Rule 11 CPC. 8. The Hon'ble Apex Court in case of U.P. Avas Evam Vikas Parishad v. Sheo Narain Kushwaha & Ors., (2011) 6 SCC 456 , while interpreting the amended[7] Rule 11(1) of Order 41 CPC, has held that dismissal of first appeal in limine is permissible but has put a rider that it is required to be dismissed by a reasoned order. The Apex Court made following observations in Para 7, 9 & 10: 7. It is evident from sub-rule (1) that an appellate court can dismiss an appeal after a preliminary hearing without calling for the records of the trial court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons. 9. Sub-rule (4) of Rule 11 does not enable the High Court to dismiss first appeals by one-line orders to the effect that "appeal is dismissed" or by non-speaking orders. The order of the High Court dismissing the first appeal should be sufficiently reasoned to disclose the application of mind to the grounds of appeal and make out that the High Court was resorting to dismissal in limine as it found the appeal either to be vexatious or wholly without merit. The order of the High Court dismissing the first appeal should be sufficiently reasoned to disclose the application of mind to the grounds of appeal and make out that the High Court was resorting to dismissal in limine as it found the appeal either to be vexatious or wholly without merit. Order 41, Rule 11 of the Code, while relieving the High Court from the obligation to write a "judgment", does not dispense with the obligation to assign reasons in brief, when summarily dismissing the appeal. 10. Unless the order is reasoned, there will be no way of knowing whether the appellate court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order of dismissal, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The appellant who has filed the first appeal in pursuance of a statutory right to file such appeal, paying necessary court fee, can legitimately expect reappreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise. 9. I have heard the learned counsel for the appellants and perused the impugned judgment. 10. In the considered opinion of this Court, the learned Court below has examined the matter threadbare and after discussing the evidence and other materials on record has found that respondents-plaintiffs are entitled for damages and the said decision in the backdrop of the facts and circumstances of the case cannot be faulted. The learned Court below has recorded finding of fact that land measuring 10 bighas from Rakba 253 bighas of Araji No. 2, Ghanvera (Kanvera) has not been encroached upon by the respondents-plaintiffs. The Court below has also recorded an affirmative finding that the respondents-plaintiffs have constructed the disputed wall on their own land and as such the action of the appellant is dehors the law. The finding of fact recorded by the learned Court below is based on appreciation of evidence in right perspective and the same[9] is neither perverse, nor infirm from any stretch of imagination. The finding of fact recorded by the learned Court below is based on appreciation of evidence in right perspective and the same[9] is neither perverse, nor infirm from any stretch of imagination. On examining the matter in its entirety, this Court is satisfied that from the normal convention some deviation is desirable as there is absolutely no merit in this appeal. In this view of the matter, I am not inclined to call for the record of the trial Court and issue notice to it. 11. The net result of the above discussion is that I find no merit in this appeal and the same is accordingly dismissed in limine.Appeal Dismissed. *******