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2018 DIGILAW 1086 (HP)

Pradhan Gram Panchayat Ladda v. Kashmir Singh

2018-06-12

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J —The present petition is maintained by the petitioner under Article 227 of the Constitution of India against the order dated 19.06.2017, passed by the learned Civil Judge (Junior Division) , Court No. 2, Ghumarwin, District Bilaspur, in CMA No. 328-6 of 2017 in Civil Suit No. 150-1 of 2008, wherein, both the applications i.e. under Section 5 of the Limitation Act and under Order 9 Rule 7 CPC, for setting aside an ex parte order, dated 18.03.2011, filed by the petitioner, ha ve been dismissed. 2. Briefly stating the facts giving rise to the present petition are that respondent No.1 Kashmir Singh, filed a civil suit bearing Civil Suit No. 150-1 of 2008 for permanent prohibitory injunction for restraining the proforma respondents No. 2, 3 and the petitioner, for constructing Community Centre over any part of the land measuring 7.12 bighas comprised in Khasra No. 34/4 Khata Khatoni 26/27, situated in village Halwari, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur, (hereinafter referred to as the ''suit land'') . The petitioner was a party in that civil suit, as defendant No.3 and in his official capacity, he was Pradhan of the Gram Panchayat Ladda at that time. In that suit, specifically certain allegations were made against him by respondent No.1. 3. In the said civil suit, the proforma respondents No. 2 & 3, had filed the written statement taking various objections regarding maintainability, locus standi, non-joinder and mis-joinder of necessary parties. On merits, it was averred that Community Centre was not constructed on the land of respondent No.1, but it was constructed on Government land/Devsthan after proper demarcation. 4. Thereafter, in the year, 2012, respondent No.1, Kashmir Singh, filed amended suit for mandatory injunction by demolition of the Community Centre allegedly over Khasra No. 34/4 of Khata/Khatoni No. 26/27, situated in village Halwari, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur and for vacant possession of land measuring 1 Biswa. The proforma respondents No. 2 & 3 (defendants No. 1 & 2 in the civil suit) also filed amended written statement, whereby, they contended that no Community Centre was constructed by the Gram Panchayat Ladda over the land measuring 1 Biswa comprised in Khasra No. 34/1, but the same was constructed on the Government land/Devsthan, in Khasra No. 31, which was ''abadi deh''. In the said civil suit, the petitioner appeared, through his counsel, after the service and kept on appearing in the proceedings before the learned Trial Court. 5. It has been contended that in the year, 2011, when the Panchayat Elections were held in the State of Himachal Pradesh, the newly elected Gram Panchayat was constituted and the entire charge of the entire work of Gram Panchayat Ladda, was handed over and taken over by the newly elected Pradhan of Gram Panchayat, Ladda, the petitioner remained under the impression that newly elected Pradhan of Gram Panchayat, Ladda, will appear and pursue the case before the learned trial Court. Thereafter, when the matter was listed before the learned trial Court on 18.03.2011, the learned trial Court proceeded ex parte order against the petitioner (defendant No.3) , i.e. the Pradhan Gram Panchayat, Ladda, as the newly elected incumbent of Gram Panchayat, Ladda and the advocate did not appear before the learned trial Court, as such, the learned trial Court proceeded further in the case by framing Issues. On 17.2.2017, the petitioner came to know about the fact that he was proceed against ex parte by the learned trial Court vide order dated 18.3.2011, as neither the newly elected Panchayat pursued the case nor the counsel had put in appearance. As such, immediately thereafter, the petitioner filed the applications one under Order 9 rule 7 for setting aside the ex parte order dated 18.3.2011 and another under Section 5 of the Limitation Act for condonation of delay in filing the aforesaid application, in which, it was averred by the petitioner that he was party before the learned trial Court in official capacity, as Pradhan of Gram Panchayat, Ladda and after the Panchayat election in January, 2011, the entire charge of the Gram Panchayat including the cases instituted by and against the Gram Panchayat, was handed over the newly elected incumbent of Gram Panchayat, so, he remained under impression that the newly incumbent of Gram Panchayat will take care of the cases and will be appearing in the same. It was further averred by the petitioner in the application that since 2010, he suffered from heart ailment, remained hospitalized and under treatment from PGI, Chandigarh and till today, he is taking medicines, so that he could not appear before the learned trial Court and on the date fixed, his counsel was busy in some other cases, therefore, he also could not appear. Therefore, the petitioner prayed for setting aside the ex parte order dated 18.3.2011, as his only purpose is for protection of the public property being Community Centre, consisting of one room in an area of one biswa over Khasra No. 31, being Government/Devsthan land, wherein an Aanganwari Centre and Mahila Mandal is also functioning, which was constructed from the public funds sanctioned and given by the proforma respondents. 6. It has been averred that respondent No.1 also filed reply to both the applications, in which he admitted the factum of arraying the Pradhan Gram Panchayat Ladda, as defendant No. 3. Further, he admitted that the new Gram Panchayat, Ladda, was elected/ constituted after filing the suit in the year 2011. 7. On 19.06.2017, learned trial Court heard both the applications and dismissed both the applications filed by the petitioner for setting aside the ex parte order dated 18.03.2011. 8. I have heard the learned counsel for the parties and perused the record in detail. 9. The learned counsel for the petitioner has argued that the ex parte order passed by the learned Court below against the petitioner, is required to be set aside and petitioner is required to join the proceedings. On the other hand, learned counsel for the respondent has argued that when the petitioner appeared before the learned Court below, he knew that he has been proceeded ex parte while he was deposing as a defence witness and now, at this belated stage, the order passed by the learned Court below is just reasoned and needs no interference. On the other hand, learned counsel for the respondent has argued that when the petitioner appeared before the learned Court below, he knew that he has been proceeded ex parte while he was deposing as a defence witness and now, at this belated stage, the order passed by the learned Court below is just reasoned and needs no interference. In rebuttal, learned counsel for the petitioner has argued that in case the petitioner is allowed to join the proceedings, he will protect the rights of the Gram Panchayat, as otherwise, after the petitioner left the office as a Pradhan, the petitioner has been proceeded against ex parte and the interest of the petitioner are not quashed and so, the order of the learned Court below be set aside and the petitioner be allowed to join the proceedings. 10. At the very outset, it is clear that the suit was filed by the respondent No.1 against the petitioner and the proforma respondents No. 2 & 3. The petitioner while appearing defendant No. 3 in the Court below, filed a detailed written statement, however, when the new office bearer of Pradhan i.e. defendant No.3 elected, defendant No.3 was proceeded against exparte and now petitioner wanted that the aforesaid order be set aside. This Court finds that the Panchayat is a legal entity and is required to be defend through someone. Earlier, the petitioner being the Pradhan, defending the Panchayat but when he was no more Pradhan, thereafter, defendant No.3 became ex parte. 11. The interest of justice demands that the defendant No.3, which is a legal entity, should be allowed to put up its case before the learned Court below and in case any public-interested persons like the petitioner, who was the Pradhan at that time and now ex-Pradhan, wanted to defend as defendant No.3, he should be allowed to join the proceedings after setting aside the ex parte order against him. In case defendant No.3 is allowed to join the proceedings, no prejudice will be caused to the plaintiff, as he has to prove his case. Further, as the subsequent Pradhan had not chosen to defend defendant No.3 in the learned Court below and thereby making defendant No.3 ex parte. In case defendant No.3 is allowed to join the proceedings, no prejudice will be caused to the plaintiff, as he has to prove his case. Further, as the subsequent Pradhan had not chosen to defend defendant No.3 in the learned Court below and thereby making defendant No.3 ex parte. In these circumstances, this Court finds that to meet the ends of justice and fair play, the ex parte proceedings against defendant No.3, are required to be set aside and defendant No.3, is required to be allowed to be represented through the petitioner. 12. In view of the above discussion, the petition is allowed accordingly and the ex parte order dated 18.3.2011 and order dated 19.06.2017, passed by the learned Civil Judge (Junior Division) Court No. 2, Ghumarwin, District Bilaspur, H.P. against defendant No.3, in civil suit No. 150-1 of 2008, are set aside and defendant No.3, is allowed to join the proceedings through the petitioner. 13. However, in the peculiar facts and circumstances of the case, the parties are left to bear their own costs. The petition stands disposed of, so also pending application (s) , if any. Parties are directed to appear before the learned Court below on 28.06.2018.