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2018 DIGILAW 1259 (HP)

Ramesh Chand v. Desh Bandhu

2018-07-10

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India takes exception to the order passed by learned Civil Judge (Senior Division), Nadaun, District Hamirpur, on 21.12.2015 whereby he permitted the respondents to lead evidence. The facts as are necessary for the adjudication of this petition may be stated thus. 2. The petitioner alongwith proforma respondent No.14 filed a suit for permanent prohibitory injunction against the respondents seeking to restrain them from interfering by using and creating path, cutting crops, trees, digging and encroaching the land by construction comprised in Khata No. 58, Khatauni No. 69 Khasra No. 8 (old) and new 200, 201 and 219 Kitas 3 measuring 0-40-32 hectares and Khata No. 59, Khatauni No. 71, Khasra Nos. 194, 195, 224, 225 Kita 4 measuring 0-30-40 hectares as per jaabandi for the year 2002-2003, situated in village Bag Mouza Hathol, Tehsil Nadaun, District Hamirpur, H.P. and in the alternate for possession by way of demolition over Khasra No. 225 over which one room has been forcibly constructed in the year 2002. 3. The respondents contested the suit and also preferred a counter claim against the petitioner and proforma respondent No.14. The parties were put to trial and the issues were framed in the year 2009 itself. The evidence of the petitioner was completed in 2010 and thereafter the matter was listed for the evidence of respondents No. 1 to 13. 4. The evidence of the respondents was closed by the order of the Court on 30.3.2015 and the matter was thereafter listed for arguments on 29.4.2015 and thereafter adjourned to 21.5.2015, 30.6.2015 and 8.7.2015. However, thereafter an application came to be filed by one set of the respondents, who were being represented by different counsel seeking permission to adduce evidence. Even though this application was opposed by filing reply, however, the learned trial Court allowed the same vide order dated 21.12.2015 by permitting the respondents No. 1, 2, 6, 10 and 11(hereinafter referred to as the contesting respondents) to lead evidence. 5. Mr. Suneet Goel, learned counsel for the petitioner would vehemently argue that in the teeth of the statement given by the counsel for the contesting respondents on 30.3.2015, the learned Court below could not have allowed the application which otherwise was based on falsehood. 6. On the other hand, Mr. 5. Mr. Suneet Goel, learned counsel for the petitioner would vehemently argue that in the teeth of the statement given by the counsel for the contesting respondents on 30.3.2015, the learned Court below could not have allowed the application which otherwise was based on falsehood. 6. On the other hand, Mr. Bhuvnesh Sharma, learned counsel for the contesting respondents would argue that since the statement on 30.3.2015 had been given only by respondents No. 3, 4, 5, 7, 8, 9, 12 and 13, therefore, this did not prevent the other respondents i.e. contesting respondents to lead evidence. I have heard learned counsel for the parties and have gone through the material placed on record. 7. Evidently, the only dispute in this petition is that whether the learned counsel representing respondents No. 1, 2, 6, 10 and 11 had in fact given a statement before the learned trial Court on 30.3.2015 whereby he had closed the evidence. 8. In order to ascertain this fact, this Court vide order dated 12.6.2018 called for the records of the case. A perusal of the record does go to show that the case was listed before the learned trial Court on 30.3.2015 on which date the statement of DW-1 Dhian Singh was recorded and thereafter the statement of Sh. Suresh Sharma, Advocate for defendants No. 3 to 5, 7 to 9, 12, 13 and thereafter statement of Sh. Chander Shekhar, Advocate for respondents No. 1, 2, 6, 10 and 11 was recorded and the same reads thus: “Stated that we closed the evidence of above noted defendants and objector evidence. 1. Sh.Suresh Sharma, Adv. Signed. 2. Sh. Chander Shekhar, Advocate.” 9. Thus, it is clear from the aforesaid statement that learned counsel for the contesting defendants had in fact given the aforesaid statement. Yet, in the application filed for grant of permission to adduce evidence, these respondents denied having made any statement as is evident from para-2 of the application which reads thus: “2. That due to inadvertence applicants/defendants failed to adduce their evidence before the Hon’ble Court, which was closed on 30.03.2015, more over applicants/defendants have not made statement for closing their evidence on 30.03.2015 since the applicants/defendants have also filed counter claims, hence to prove counter claim, the statement/evidence of applicants/ defendants is necessary.” 10. This course was obviously not available to these respondents. This course was obviously not available to these respondents. If these respondents had any grievance regarding the statement with respect to the aforesaid statement, it is incumbent upon them to have called attention of the very Judge when the matter was still fresh in his mind to have the order recalled, as it is more than settled that anything recorded in the ordersheet are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment/order that is the only way to have the record corrected. If no such steps are taken, then the matter must necessarily end there, as it is not open for the aggrieved party to contend that the statement so recorded is incorrect or had not been given. (Refer: State of Maharashtra vs. Ramdas Shrinivas Nayak (1982) 2 SCC 463 , Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 and Commissioner of Customs, Mumbai vs. Bureau Veritas and others (2005) 3 SCC 265 ). 11. It has to be remembered that the proceedings of the Court and its decorum are sacrosanct and cannot readily be permitted to be impeached. Noticeably, the only ground on which the application for leading evidence has been allowed by the learned trial Court is that the statement as recorded on 30.03.2015 has not been signed by Sh. Chander Shekhar Sharma, Advocate, and therefore it cannot be said that the evidence of the contesting respondents had been closed by the order of the day. To say the least, the reasoning as given by the learned trial Court below is absolutely fallacious and untenable because in the order that was passed by the learned trial Court on 30.03.2015 it is specifically recorded that the defendants have closed the evidence. 12. Admittedly, no recall or review of this order has been sought for by the contesting defendants before filing the application and once this order stands, obviously the learned Court below could not have allowed the application, that too, for the reasons as recorded therein. 13. 12. Admittedly, no recall or review of this order has been sought for by the contesting defendants before filing the application and once this order stands, obviously the learned Court below could not have allowed the application, that too, for the reasons as recorded therein. 13. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the order dated 21.12.2015 passed by learned Civil Judge (Senior Division), Nadaun, District Hamirpur, H.P. in Civil Suit No. 43 of 2009 permitting the defendants to lead evidence, is set-aside. 14. The parties through their counsel(s) are directed to appear before the learned trial Court on 30.7.2018. The Registry is directed to forward back the records of the case immediately to the concerned Court so as to reach well before the aforesaid date. 15. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.