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2014 DIGILAW 153 (HP)

Tilak Raj v. Udham Singh

2014-03-05

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. (oral) In this petition filed under Article 227 of the Constitution of India, petitioners who are defendants before the Court below, have assailed the order dated 28.9.2013 passed by learned Civil Judge (Junior Division), Dehra, Distt. Kangra, H.P., in Civil Suit No. 131 of 2007, titled as Udham Singh vs. Tilak Raj & others, in the application filed under Order 8 Rule 1 (1-A)(3) of Code of Civil Procedure, whereby petitioners want to place on record spot map/site plan depicting the water channel over the suit land. 2. Sh. Udham Singh, plaintiff (respondent herein) filed a suit against the present petitioners, restraining them from causing any obstruction in the free flow of water in the water channel constructed by the State. 3. On 11.8.2008, trial Court, based on the pleadings of parties framed the following issues: “(1) Whether plaintiff is entitled for permanent prohibitory injunction as prayed for? OPP (2) Whether plaintiff has easementory right by way of custom, necessity and prescription of irrigation through water channel through land of defendants as alleged? OPP (3) Whether plaintiff is entitled for mandatory injunction as alleged? OPP (4) Whether the suit is not maintainable? OPD (5) Whether suit is bad for non-joining of State of H.P.? OPD (6) Whether plaintiff has no cause of action? OPD (7) Whether plaintiff has no locus standi? OPD (8) Whether plaintiff is estopped from filing present suit? OPD (9) Whether suit is false and frivolous as alleged, if so its effect? OPD (10) Relief. 4. Undisputedly suit is pending trial since then. Plaintiff’s evidence is over and defendant produced his first witness on 1.10.2011. Thereafter, for some reason or the other, matter was adjourned and statements of all the defendants witnesses could not be recorded. It is also a matter of record that on 7.8.2013, Sh. Puran Chand (DW-3), official witness summoned by the defendant, was present in the Court but his statement could not be recorded as he failed to produce the summoned record. Consequently matter was adjourned. On 17.9.2013 defendant filed an application under Order 8 Rule 1(1-A)(3) read with Section 151 CPC, seeking leave of the Court to place on record the spot map/ site plan dated 5.12.2012, issued by the IPH Department of the State of Himachal Pradesh. Consequently matter was adjourned. On 17.9.2013 defendant filed an application under Order 8 Rule 1(1-A)(3) read with Section 151 CPC, seeking leave of the Court to place on record the spot map/ site plan dated 5.12.2012, issued by the IPH Department of the State of Himachal Pradesh. This application stands rejected vide impugned order, for the reasons that it is highly belated and that the document is not relevant for adjudication of the controversy in issue. 5. It be only observed that the document sought to be placed on record depicts the alignment of the water channel constructed by the IPH Department of the State over different parcels of land. 6. No doubt it is true that trial in the suit filed in the year 2007 is not complete. But then what needs to be examined is as to whether fault is purely that of the defendant or not. 7. Having gone through the material placed on record, I am of the considered view that defendant is not totally to be blamed. Yes on certain dates defendants’ witnesses were not present. But then on 9.4.2013 and 7.8.2013 defendants’ witness could not be examined as the summoned official witness had not brought the summoned record. 8. Order 8 CPC postulates that all documents are to be filed alongwith the pleadings. The fact of the matter is that the document sought to be placed on record was obtained by the defendant only in the year 2012. He could have got the document earlier. But there was no need. In fact, it was part of the summoned record. Only when the witness failed to produce the same, defendant sought permission to place the same on record. Court below, in order to ensure that ends of justice are met, ought to have taken action against the witness who had failed to produce the summoned record. Rather than doing so, it rejected the application on the ground of delay. In my considered view, it is here that the Court has seriously erred. The order is thus perverse. Serious prejudice is caused to the defendant. The document in question was absolutely necessary for adjudication of the controversy in issue. Issue No. 2, reproduced supra, is evidently clear in this regard. 9. As such, present petition is allowed as the impugned order cannot be said to be legal. The order is thus perverse. Serious prejudice is caused to the defendant. The document in question was absolutely necessary for adjudication of the controversy in issue. Issue No. 2, reproduced supra, is evidently clear in this regard. 9. As such, present petition is allowed as the impugned order cannot be said to be legal. Ends of justice would be met in allowing the petition with the following directions: (i) Application filed by the defendant under Order 8 rule 1(1-A)(3) CPC is allowed subject to payment of Rs.5000/- (rupees five thousand) as cost. The document is taken on record. (ii) Trial in the suit is expedited. (iii) Parties shall appear before the trial Court on 22nd April, 2014. (iv) Fresh date of examination of the defendants’ witnesses shall be fixed and not more than two opportunities shall be afforded to the defendants to lead its entire evidence on the dates so fixed by the trial Court. (v) The suit itself shall be decided within a period of six months from today. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. Pending applications, if any, also stand disposed of.