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2016 DIGILAW 828 (HP)

Devinder Kumar v. Bishamber Nath

2016-05-17

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present petition under Article 227 of the Constitution of India is maintained by the petitioner-applicant-defendant (hereinafter referred to as ‘the petitioner’) against the plaintiff-respondent (hereinafter referred to as ‘the respondent). Respondents No. 2 to 6 are defendants in the Court below and now they are impleaded as proforma respondents. The petitioner has challenged the order dated 25.11.2014, passed by learned Civil Judge (Jr. Division), Chamba, District Chamba, HP in Civil Suit No. 90 of 2010, titled as Bishambher Nath Vs Devinder Kumar and others, wherein the application filed by the petitioner for placing on record the copy of demarcation report stands dismissed by the Court below with a prayer to allow the application. 2. Briefly stating the facts giving rise to the present petition are that the respondents maintained a Civil Suit for permanent prohibitory injunction, restraining the petitioner and proforma respondents, their agents, servants and workmen from raising any construction over the best and valuable portion of the joint land comprised in Khasra Nos. 681, 682, 684, 727, Khatauni No. 74/81, situated at Mouza Rei, Pargana Sach, Tehsil Pangi, District Chamba, as per jamabandi for the year, 2004-05 and also for mandatory injunction that if during the pendency of the suit, the petitioner and proforma defendants raised any construction or change the nature thereof, the suit land be ordered to be restored to its original position. 3. The petitioner filed written statement and besides taking preliminary objections regarding cause of action, maintainability, locus standi, estopple, the petitioner denied that he has raised any construction and submitted that it is the respondent who is raising construction over the suit land. Application under Order 8 Rule 1A(3) and under Order 16 Rule 2 of C.P.C. read with Section 151 of C.P.C. was moved by the petitioner in the trial Court, wherein, the petitioner pleaded that the Kanungo inspected the land on 6.8.2013 and gave its inspection report and has reported that it is the respondent/plaintiff, who has constructed a double storeyed house recently. The case of the petitioner is that this report was not within his knowledge as it came into existence only after the filing of the written statement. It is prayed that the aforesaid documents are essential for adjudication of the case. 4. The case of the petitioner is that this report was not within his knowledge as it came into existence only after the filing of the written statement. It is prayed that the aforesaid documents are essential for adjudication of the case. 4. Reply to the application filed by the respondent and it is averred that there is no such report and the application is filed to delay the matter. 5. Heard the learned counsel for the parties and have gone through the record of the case. When the application was filed by the applicant in the Court below, the matter was listed for arguments. It is on record that evidence of the petitioner was recorded in the Court below on 29.5.2014 and affidavit of the petitioner was prepared on 29.5.2014 when the report, which now the petitioner wants to produce on record existed. These facts are not disputed by the petitioner in the petition. Only the ground taken in the petition to allow the production of documents is that when the written statement was filed, the document was not in existence. Now coming to the fact that when the evidence is already over and the petitioner was having opportunity to produce the document at the time of evidence with the permission of the Court and it was not produced at that time. Can it be allowed to be produced at this belated stage when the matter is already fixed for arguments. The provision in the Code of Civil Procedure under Order 18 Rule 17(A) of C.P.C. with respect to production of evidence, which was not previously known or which could not be produced despite due diligence, already stands omitted by Amendment Act, 1999 and is no more in existence. 6. The application of the petitioner in invoking the jurisdiction of the Court to take on record documents and allow the petitioner to prove it when the evidence is already closed. However, it is also noticed that the petitioner was having knowledge and opportunity to produce this document with the permission of the Court when his evidence is recorded, but he failed to do so. 7. In view of the above, I do not find any reason to interfere with the order of the Court below. The findings of the trial Court to this regard call for no interference and the petition is accordingly dismissed. 7. In view of the above, I do not find any reason to interfere with the order of the Court below. The findings of the trial Court to this regard call for no interference and the petition is accordingly dismissed. However, in the peculiar facts and circumstances of the case, there is no order as to costs. The parties are directed appear before the Court below on 31.5.2016.