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2016 DIGILAW 1105 (HP)

Raghubir Singh v. Pradeep Kumar

2016-06-21

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. In this petition filed under the provisions of Article 227 of the Constitution of India, newly added defendants/legal heirs of the original defendant have assailed order dated 30.11.2015, passed by Civil Judge (Senior Division), Court No. 1, Paonta Sahib, District Sirmaur, H.P., in Case No. 208/1 of 2009, titled as Pardeep Singh and others vs. Jeet Singh. In terms of the impugned order, additional written statement allegedly pleading new facts by setting up a new defence by the legal heirs, has been directed to be taken off the record for the reason that their action, without following the procedure i.e. seeking amendment of the original written statement, has seriously prejudiced the plaintiffs. 2. It is a matter of record that plaintiffs/respondents herein had filed a suit for declaration and permanent prohibitory injunction with respect to their right, title and interest in the suit land. The suit came to be contested by the original defendant Jeet Singh who not only disputed the plaintiffs’ right, title and interest but also claimed his title by virtue of the provisions of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act) over the suit land. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1.) “Whether the plaintiffs are entitled for the decree of possession of the suit land bearing decree of possession of the suit land bearing Khasra No. 498/437/3 measuring 0-6 bighas out of the land Khewat Khatauni No. 177/270, Khasra No. 498/437 total measuring 2-12 bighas situated at mauza Kolar, Tehsil Paonta Sahib, as alleged?....OPP 2.) Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction against the defendant, as alleged? ….OPP 3.) Whether the suit is not maintainable in the present form?....OPD 4.) Whether the plaintiff have no cause of action?...OPD 5.) Whether the plaintiffs are estopped by their act, conduct and acquiescence to file the present suit? ….OPD 6.) Whether the defendant has become owner of the suit land by way of adverse possession as has been in peaceful, open and continuous possession of the same since May 1977, as alleged? …..OPD 7.) Relief.” 4. Noticeably, interest and title of the respective parties was the subject matter of adjudication by the trial Court. 5. ….OPD 6.) Whether the defendant has become owner of the suit land by way of adverse possession as has been in peaceful, open and continuous possession of the same since May 1977, as alleged? …..OPD 7.) Relief.” 4. Noticeably, interest and title of the respective parties was the subject matter of adjudication by the trial Court. 5. It is a matter of record that original defendant Jeet Singh expired and his legal heirs came to be brought on record vide order dated 25.7.2015. It is also a matter of record that these newly added defendants/legal heirs sought permission of the Court to file additional written statement appropriate to their character, which request came to be granted vide order dated 7.9.2015. Not only additional such written statement was taken on record but also, on the plaintiff’s request, matter came to be adjourned and opportunity granted to place on record additional replication, which eventually came to be filed and taken on record. Orders dated 24.9.2015 and 26.9.2015 so passed by the trial Court are apparently clear to such effect. 6. Record reveals that on 7.10.2015, Court adjourned the matter for hearing the parties on the necessity of framing additional issue and leading fresh evidence, if any. With regard to the same, matter was heard on 17.11.2015 and 30.11.2015, when in terms of the impugned order, trial Court directed the additional written statement to be taken off the record. 7. Perusal of the additional written statement reveals that the legal heirs simply want to rely upon the revenue entries, conferring status of ownership by virtue of the provisions of the Act. There is nothing more or other than what the original defendant had pleaded in the original written statement. Additional written statement is more clarificatory in nature with the plea being elaborated. No new plea was ever sought to be incorporated. Significantly, plea taken by the legal heirs, invested with their rights under the provisions of the Civil Procedure Code, is in fact with regard to their character as legal heirs of the deceased defendant. Such right emanates out of sub rule (2) of rule 4 of Order 22 of the Civil Procedure Code. Hence, the Court below erred in coming to the conclusion that the only remedy available with the legal heirs was to seek amendment of the written statement. 8. Such right emanates out of sub rule (2) of rule 4 of Order 22 of the Civil Procedure Code. Hence, the Court below erred in coming to the conclusion that the only remedy available with the legal heirs was to seek amendment of the written statement. 8. Significantly, provisions of Order 6 Rule 17 and Order 22 Rule 4 of the Civil Procedure Code are independent to each other and operate in a totally different fact situation. To this extent, Mr. Desh Raj Thakur, learned counsel for the petitioner is right in drawing attention of this Court to the decision rendered by the apex Court in Abdul Razak (dead) through LRs and others vs. Mangesh Rajaram Wagle and others, (2010) 2 SCC 432 and Delhi High Court in Sayed Sirajul Hasan vs. Sh. Syed Murtaza Ali Khan, ILR (1992) 1 Delhi 401. 9. Noticeably, the trial Court itself had allowed the newly added defendants to place on record additional written statement. It had also accepted the additional replication filed by the plaintiffs. Having done so the trial Court, in the absence of any challenge to the orders dated 7.9.2015, 24.9.2015 and 26.9.2015 could not have itself, suo motu, recalled its order, more so when it was not pleaded by any one of the parties. 10. The only question which required consideration was as to whether any additional issue was to be framed and evidence to be led or not. Now this aspect of the matter was never considered by the Court. 11. Hence, for all the aforesaid reasons, impugned order dated 30.11.2015 passed by Civil Judge (Senior Division), Court No.1, Paonta Sahib, District Sirmaur, H.P., in Case No. 208/1 of 2009, titled as Pardeep Singh and others vs. Jeet Singh, is quashed and set aside and the matter remanded back to the trial Court for consideration as to whether any additional issue is required to be framed and evidence, if any, required to be led thereupon or not. 12. Record reveals that the matter has been adjourned repeatedly on the asking of the original defendant. Petitioners undertake to fully cooperate and not taken any unnecessary adjournments. Trial is expedited. 13. The parties are directed to appear before the trial Court on 12.7.2016. 14. An endeavour shall be made to complete the trial, if possible, within a period of six months thereafter. Petitioners undertake to fully cooperate and not taken any unnecessary adjournments. Trial is expedited. 13. The parties are directed to appear before the trial Court on 12.7.2016. 14. An endeavour shall be made to complete the trial, if possible, within a period of six months thereafter. With the aforesaid observation, present petition stands disposed of, so also, pending applications, if any.