Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1215 (HP)

Mohan Singh v. Tilak Raj urf Ang

2018-07-05

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:- “It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned order dated 21.02.2017 passed by the Court of Chief Judicial Magistrate, Una, District Una, H.P. in CMP No. 442-VI-15, may kindly be quashed and set-aside and the application filed by the respondent/plaintiff for leading additional evidence may kindly be dismissed or the Hon’ble Court may please to pass any such or further order which may deem just and proper in the facts and circumstances of the case in the interest of justice and fair play.” 2. Brief facts necessary for adjudication of the petition are as under:- A suit has been filed by the present respondent/ plaintiff against the present petitioners/defendants for declaration to the effect that the plaintiff was in possession as tenant at will and had become owner of the suit land by virtue of operation of H.P. Tenancy and Land Reforms Act and that defendants had no right, title or interest over the suit land and that entries of the suit land in favour of the defendants reflecting them as owners in possession of the same were wrong, void abinitio and ineffective and were not binding on the rights of the plaintiff. A decree for permanent injunction by way of consequential relief restraining defendants from interfering over the suit land or changing its nature was also prayed for. 3. This suit was instituted in the year 2006. Issues in the said suit stood framed on 07.01.2012. Thereafter, the matter was listed for recording statement of plaintiff’s witnesses for 08.02.2012. As no plaintiff witness was present on 08.02.2012, the matter was adjourned for the said purpose for 20.03.2012. Again on 20.03.2012, plaintiff witness(s) were neither summoned nor present and accordingly, the matter was listed for said purpose for 23.06.2012. On the said date also, no plaintiff witness was present and the matter was adjourned for 19.11.2012 and last opportunity was granted to the plaintiff to lead evidence. 4. On 19.11.2012, three affidavits by way of evidence were filed by the plaintiff and the Court was also informed that defendant No. 27 had died. On the said date also, no plaintiff witness was present and the matter was adjourned for 19.11.2012 and last opportunity was granted to the plaintiff to lead evidence. 4. On 19.11.2012, three affidavits by way of evidence were filed by the plaintiff and the Court was also informed that defendant No. 27 had died. Thereafter further proceedings in the case took place and on 01.03.2014, case was ordered to be listed for 28.03.2014 for recording statement of plaintiff’s witnesses. 5. On the said date, affidavit of one Shri Gandhrav Singh was filed and case was ordered to be listed on 11.12.2014 for the cross examination of Gandhrav Singh. It was also ordered that remaining witnesses be also summoned for the said date. 6. On 11.04.2014, again none of the plaintiff witness was present. Plaintiff was given one more opportunity to lead his evidence subject to cost of _500 and the case was ordered to be listed on 3.5.2014. 7. On the said date, i.e. on 3.5.2014, evidence of the plaintiff was closed by an order of the Court and the matter was ordered to be listed on 29.5.2014 for recording the evidence of the defendant. Order dated 03.05.2014 is quoted herein-below:- “No PW present. This is the last opportunity for plaintiff’ evidence. This is an old case pertaining to the year 2006. Already sufficient opportunities have been granted to the plaintiff to produce his witnesses in the court. On previous date of hearing, final opportunity was granted to the plaintiff to produce his witnesses subject to costs of _500/-, but despite this fact neither plaintiff nor any witness produced nor any steps have been taken by the plaintiff for production of his witnesses. Hence, evidence of the plaintiff is closed by the order of court. Now to come up for evidence of defendants on 29.5.2014 on taking steps within 3 days.” 8. Thereafter, the matter was listed for recording of evidence of the defendants. On 20.06.2014, it was recorded that no defence evidence is to be led and the matter was accordingly listed for arguments on 11.08.2014. 9. On 11.08.2014, adjournment was sought by the parties for arguments and arguments were finally heard by the Court on 25.02.2015 and the case was listed for orders on 21.03.2015 but on 21.03.2015, the order could not be announced. 10. 9. On 11.08.2014, adjournment was sought by the parties for arguments and arguments were finally heard by the Court on 25.02.2015 and the case was listed for orders on 21.03.2015 but on 21.03.2015, the order could not be announced. 10. On 21.03.2015, the case was ordered to be listed for orders on 24.03.2015 and on the said date i.e. on 24.03.2015, for the same purpose, the case was ordered to be listed for 01.04.2015. 11. A perusal of the record of the learned trial Court demonstrates that on 01.04.2015, no judgment was announced and the following order was passed:- “Time prayed for arguments. Allowed. Now to come up for arguments on 30.04.215.” 12. Thereafter, the case was listed for arguments on 30.04.2015, 06.06.2015, 19.08.2015 and 12.10.2015. On 12.10.2015, the following order was passed:- “Time prayed for arguments. Allowed. Now to come up for arguments on. At this stage ld. Counsel for plaintiff has moved an application u/s 151 of CPC. Copy supplied. It be registered. Now reply be filed on 20.11.2015.” 13. Copy of the application filed under Section 151 of CPC is appended with the petition as Annexure P-5. Contents of the same are quoted herein-below:- “Application under section 151 C.P.C. for providing and exhibiting all the documents attached with the plaint and recording the statement of Tilak Raj plaintiff by way of additional evidence. Sir, The plaintiff/applicant submits as under:- 1. That the above noted civil suit is pending in this Hon’ble Court in which today is the date of hearing. 2. That all the documents detailed in the plaint are already attached with the plaint at the time of filing this suit and placed the affidavit of Tilask Raj plaintiff in the form of examination in chief but the documents attached with the plaint have not been proved and exhibited and the plaintiff was not cross examined though his affidavit is already on the file but the evidence of the plaintiff was closed by the order of this court. The documents attached with the plaint and recording the statement of plaintiff are very relevant and material to pronounce the judgment as well as to decide the matter in controversy but the plaintiff could not prove and exhibit all the documents attached with the plaint and record his statement after the exercise of due diligence. Affidavit attached. The documents attached with the plaint and recording the statement of plaintiff are very relevant and material to pronounce the judgment as well as to decide the matter in controversy but the plaintiff could not prove and exhibit all the documents attached with the plaint and record his statement after the exercise of due diligence. Affidavit attached. Prayer:- It is, therefore, humbly prayed that all the documents attached with the plaint may please be allowed to be proved and exhibited and the statement of the plaintiff may also be allowed to be recorded by way of additional evidence by allowing this application in the interest of justice.” 14. Reply to the said application was filed by the non-applicant who objected to the prayer so made in the application. 15. Vide order dated 21.02.2017, learned trial Court allowed the application and permitted the plaintiff to lead additional evidence in the form of cross examination of the witness whose affidavit has already been tendered and also for accepting the documents which are already on record. It was further mentioned in the impugned order that in case plaintiff intends to examine any or all the witnesses through the process of the Court, then the said witnesses be also summoned on filing process fee. 16. Feeling aggrieved, the defendants have filed the present petition. 17. I have heard learned Counsel for the parties and gone through the records of the case as also the order passed by the learned trial Court. 18. Order XX, Rule 1 of the Code of Civil Procedure provides that the Court, after the case has been heard, shall pronounce the judgment in an open Court, either at once, or as soon as, as may be practicable. 19. In the present case, it is not in dispute that the arguments in the case stood heard by the learned trial Court on 25.02.2015. It is also not in dispute that thereafter, the case was listed on various dates for the purpose of pronouncement of judgment and then for re-hearing. It is also not in dispute that it is at this stage that an application under Section 151 of the Code of Civil Procedure was filed by the plaintiff for leading additional evidence, which stood allowed by the learned trial Court. 20. It is also not in dispute that it is at this stage that an application under Section 151 of the Code of Civil Procedure was filed by the plaintiff for leading additional evidence, which stood allowed by the learned trial Court. 20. Though the contention of learned Counsel for the defendants is that once the arguments in the suit stood heard by the learned trial Court and the judgment was reserved, learned Court below has erred in entertaining the application so filed under Section 151 of the Code of Civil Procedure for leading additional evidence, however, in my considered view, such submission is not borne out from the records of the case because is a matter of record that after the judgment was reserved and before the same could be announced, the matter was ordered to be listed for re-hearing. Though the zimni orders passed by the learned trial Court are silent as to on whose request, the case was listed for re-hearing and rearguments but the same was not opposed by learned Counsel for the plaintiff. Records further demonstrates that it was in the course of dates which were so granted by learned trial Court for re-hearing that plaintiff had filed the application for leading additional evidence. Thus, it is not a case wherein the application was filed by the plaintiff for leading additional evidence under Section 151 of CPC after the arguments were heard and the judgment was reserved. 21. Be that as it may, still it remains a fact that the application in issue was filed by the defendants praying for permission to allow him to lead additional evidence at a highly belated stage. 22. It is pertinent to mention at this stage that as far as exercise of inherent powers so vested in a Court under Section 151 of the Code of Civil Procedure for the purpose of allowing to leading additional evidence is concerned, there is no dispute that such discretion is vested in a Court and same stands recognized by the Hon’ble Supreme Court also in Salem Advocate Bar Association, T. N. Versus Union of India, (2005) 6 Supreme Court Cases 344. But then, such power can only be exercised by a Court of law in case an applicant approaches it bonafidely and where filing of such an application is not abuse of process of law. 23. But then, such power can only be exercised by a Court of law in case an applicant approaches it bonafidely and where filing of such an application is not abuse of process of law. 23. It is apparent and evident from the records of the case that despite various opportunities, no evidence was led by the plaintiff except filing of the affidavit. It is not in dispute that as per the law so declared by Hon’ble Supreme Court after the deletion of the provisions of Order XVIII, Rule 17 of the Code of Civil Procedure, a Court may allow the application permitting a party to lead additional evidence under the provisions of Section 151 of the Code of Civil Procedure, but such inherent power has to be exercised by the Court cautiously after taking into consideration the facts of the case. 24. In the present case, in view of the fact that despite various opportunities, no evidence was led by the plaintiff, in my considered view, learned trial Court erred in exercising its inherent power while allowing the application so filed by the plaintiff under Section 151 of the Code of Civil Procedure. It is not in dispute that evidence of the plaintiff in the suit was closed by an order of the learned Court, which attained finality as the same was not challenged by the plaintiff and thereafter, after affording two opportunities to the defendants to lead their evidence, the case was fixed for arguments and rehearing and at this stage the application was so filed by the plaintiff praying for permitting him to lead additional evidence. 25. As I have already quoted the contents of the application filed under Section 151 of the Code of Civil Procedure herein-above, which itself demonstrate that the said application is as cryptic and vague as it could have been. Exercise of inherent power so conferred upon a Court, as I have already discussed above, is not only to be exercised cautiously but also to be exercised prudently because the Court has not only to take into consideration the perspective of the applicant but also has to take into consideration the perceptive of the non-applicant, upon whom, rights stand accrued, on account of acts of omission on the part of the applicant. This important aspect of the matter has also not been taken into consideration by the learned trial Court while allowing the said application. No reasons have been assigned by the learned trial Court as to why it allowed the application filed to lead additional evidence at such a belated stage, save and except the fact that because affidavits stood filed by the plaintiff, therefore, it could not be said that no evidence was led by the plaintiff. While returning the said findings, learned trial Court erred in not appreciating that in the absence of said affidavits having been proved on record by the deponent of the same, they were having no evidentiary value. Therefore also, the order so passed by the learned trial Court of allowing the application so filed by the plaintiff under Section 151 of the Code of Civil Procedure is bad and not sustainable in law. 26. In view of above discussion, this petition is allowed and the impugned order dated 21.02.2017 so passed by learned Civil Judge (Sr. Division), Una District Una, is quashed and set aside. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.