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2013 DIGILAW 62 (UTT)

AMBA PRASAD ATREY v. DISTRICT JUDGE, DEHRADUN

2013-02-26

V.K.Bist

body2013
JUDGMENT Hon’ble V.K. Bist, J. Heard learned counsel for the parties and perused the record. 2. Instant petition has been filed by the petitioners challenging the order dated 22.12.2006 passed by Civil Judge (Jr. Div.), Rishikesh, District Dehradun as well as the order dated 18.01.2007 passed by District Judge, Dehradun. 3. In the year 2002, the plaintiffs/respondents instituted Suit No. 762 of 2002 ‘Dharamshala Shambhubara Trust and other vs. Amba Prasad Atrey and others’ in respect of the property situate at Ghat Road, Rishikesh, District Dehradun for eviction of the defendants/petitioners and respondent no.10 from the property in question. The defendants/petitioners moved an application (paper no. 73 c/2) alongwith counter claim (paper no. 74 c/2) claiming their ownership over the property in question. The said application was rejected with the observation to file separate suit. The order passed by the Civil Judge (Sr. Div.), Dehradun was upheld by the High Court. Thereafter, the defendants/petitioners filed another Suit No. 467 of 2006 ‘Amba Prasad Atrey and others vs. Dharamshala Shambhubara Trust and others’ before the Civil Judge (Sr. Div.), Dehradun for declaration of their ownership over the property in dispute. The defendants/petitioners also filed 57 certified copies of various documents, procured by them from O.S. No. 467 of 2006 as well as from Nagar Palika, Rishikesh, District Dehradun alongwith an application (paper no. 100 c/2) in Original Suit No. 762 of 2002 ‘Dharamshala Shambhubara Trust and other vs. Amba Prasad Atrey and others’. Against the said application, objection was filed by the plaintiffs/respondents. The Civil Judge (Jr. Div.), Rishikesh rejected the application of the defendants/ petitioners bearing paper no. 100 c/2 vide order dated 22.12.2006. Thereafter, Civil Revision No. 12 of 2006 was preferred by the defendants/petitioners, which was dismissed by the learned District Judge, Dehradun vide order dated 18.01.2007. Aggrieved by the said orders, instant petition has been filed by the defendants/petitioners. 4. The application paper no. 100 c/2 moved by the defendants/petitioners was rejected by the Courts below on the ground of laches on the part of the defendants/ petitioners. The Courts below found that the defendants/ petitioners have not disclosed sufficient reasons for the undue delay in moving the said application and also for filing the documents. 4. The application paper no. 100 c/2 moved by the defendants/petitioners was rejected by the Courts below on the ground of laches on the part of the defendants/ petitioners. The Courts below found that the defendants/ petitioners have not disclosed sufficient reasons for the undue delay in moving the said application and also for filing the documents. Learned counsel appearing for the petitioners submitted that, in fact the Courts below have erred in holding that the application 100 c/2 has been moved deliberately with the ulterior motive to prolong the proceedings. He submits that the order impugned have been passed without considering the application of the defendants/petitioners, though the petitioners have clearly mentioned that original documents were filed in Suit No. 467 of 2006 and due to the very reason, certified copies of the original documents are being filed alongwith the application 100 c/2, which are necessary to reach to a just decision of the case. 5. Mr. Sarvesh Agarwal, Advocate for private respondents submitted that the defendants/petitioners should have filed those documents earlier. He submitted that, in fact the petitioners have sought adjournments on several occasions and since the petitioners were seeking adjournment for cross-examining the witnesses, the Court below have rightly rejected the application of the defendants/petitioners on the ground of delay. 6. I have considered the submissions advanced by the learned counsel for the parties. 7. Though there was delay in moving the application paper no. 100 c/2 for filing certain documents, but the reasons mentioned in the application were justified. In the said application is was mentioned that the defendants/petitioners could not file the original documents as the same were filed in a separate suit and after obtaining certified copies of the original documents, they intended to file the same in O.S. 762 of 2002. I do not find any considerable or undue delay on the part of the petitioners in filing those documents. 8. Consequently, the writ petition is allowed. Order dated 22.12.2006 passed by Civil Judge (Jr. Div.), Rishikesh, Dehradun in Original Suit No. 762 of 2003 as well as the order dated 18.01.2007 passed by the District Judge, Dehradun in Civil Appeal No. 12 of 2006 are hereby quashed. The application (paper no. 100 c/2) is allowed. The documents filed by the defendants/ petitioners, alongwith the application 100 c/2 shall be taken on the record of O.S. No. 762 of 2002. 9. The application (paper no. 100 c/2) is allowed. The documents filed by the defendants/ petitioners, alongwith the application 100 c/2 shall be taken on the record of O.S. No. 762 of 2002. 9. Since the matter is very old, I direct the Civil Judge (Jr. Div.), Rishikesh, Dehradun to hear and decide the said suit, itself, within a period of four months from the date of production of a certified copy of this order.