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2018 DIGILAW 2082 (RAJ)

Ramniwas Jat v. Madan Chamar

2018-10-09

ALOK SHARMA

body2018
JUDGMENT : ALOK SHARMA, J. Application for deleting the name of respondent no. 5 from the array of respondents is allowed for the reasons stated therein. Name of respondent no. 5 is ordered to be deleted from the array of respondents. 2. With the consent of counsel for the parties, the arguments have been heard and the writ petition is being decided finally at this stage. 3. Under challenge is the order dated 31.5.2018 passed by Civil Judge, Jhunjhunu dismissing the defendant-petitioner's (hereafter ‘the defendant’) applications under Order 8 Rule 1A readwith 151 CPC. Also under challenge is the order passed on the petitioner-defendants’ application under Order 14 Rule 5 CPC insofar as it places the burden of proof on newly struck issue no. 7 on the defendant. 4. The plaintiffs-respondents (hereafter ‘the plaintiffs’) filed a suit for permanent injunction against the defendant in the year 2003. Service of summons therein was followed by the defendant filing written statement. Issues were then struck. 5. The defendant then filed an application on 5.7.2017 under Order 14 Rule 5 r/w 151 CPC for framing 3 additional issues (issue no. 7, 8 and 9) which was allowed by the trial court vide order dated 11.1.2018. The burden of proof whereof was cast upon the defendant. Thereafter the defendant filed the application under Order 8 Rule 1A r/w 151 CPC as also the application under Order 14 Rule 5 CPC objecting to burden on issue no. 7 being placed on him. Those two applications were dismissed by the trial court vide order dated 31.5.2018. Hence this writ petition. 6. Heard. Considered. 7. The trial court in its order dated 31.5.2018 noted that from perusal of the documents sought to be taken on record it did not transpire that they related to the suit land in issue. Neither Khasra nos. nor measurement of the land was disclosed in the documents belatedly filed in the year 2018 in a suit of 2003. The trial court also noted that no reason was given by the defendant for not filing the said documents with his written statement, whereas the said documents were apparently in his possession at the earlier point of time. Resultantly the trial court dismissed the defendant's application under Order 8 Rule 1A CPC. 8. The trial court also noted that no reason was given by the defendant for not filing the said documents with his written statement, whereas the said documents were apparently in his possession at the earlier point of time. Resultantly the trial court dismissed the defendant's application under Order 8 Rule 1A CPC. 8. So far as the other application under Order 14 Rule 5 CPC is concerned, the trial court noted that since the defendant raised the objection with regard to valuation of the suit land in his written statement based whereon on his application issue no 7 in that regard was framed, the burden of proof thereof was rightly cast upon him. So holding, the trial court also dismissed the defendant's application under Order 14 CPC. 9. Mr. Intjar Ali counsel for the defendant submitted that the dismissal of the defendant's two applications in issue by the trial court was in a cursory manner and the trial court failed to exercise its discretion judiciously. He placed reliance on the judgments in the case of Kapil Kumar Sharma v. Lalit Kumar Sharma ((2013) 14 SCC 612) & in the case of Shri Mewara Kashtriya Samaj, Jodhpur v. Devi Singh (2013 (4) DNJ (Raj.) 1504). 10. I am of the considered view that this petition under Article 227 of the Constitution of India is liable for rejection at the threshold for misjoinder of causes of action as dismissal of two distinct applications one under Order 8 Rule 1A(3) CPC and the other under Order 14 Rule 5 CPC albeit by common order dated 31.5.2.018 constituted two causes of action, one unrelated to the other. There is no linkage between the two orders impugned. Each therefore was to be challenged separately. 11. However, even otherwise having considered the facts of the case, it is quite evident that the impugned order is one wholly without reproach. The applications under Order 8 Rule 1A r/w 151 CPC was grossly belated, filed, as it was several years after filing of the written statement and further sought to bring on record irrelevant documents which by themselves were quite amorphous. As far as the burden of proof on issue no. 7 is concerned, the trial court has noted that the said issue struck was on the defendant's averment of the suit being under valued. As far as the burden of proof on issue no. 7 is concerned, the trial court has noted that the said issue struck was on the defendant's averment of the suit being under valued. It held that in the circumstance it was the defendant's burden to so prove. The conclusion is based on first principle of one averring has to prove and is valid. No ground for interference is made out. 12. It would in place to record the gross abuse of Article 227 of the Constitution of India by reckless petitions following the amendment to Section 115 CPC under CPC's amendment effective 1.7.2002 whereunder the proviso to Section 115 (1) CPC sets out a strict pre-condition for invoking revisional jurisdiction and excludes revisions against interlocutory orders passed in the course of a trial in a suit which would not even if otherwise passed have entailed final dismissal of the suit. That exclusion is sought to be circumvented by Article 227 petitions filed without any legal justification. Article 227 of the Constitution of India confers supervisory jurisdiction in the High Court which is substantially discretionary. The contours of Article 227 of the Constitution of India have well being delineated ad nauseum and reference may be made for the purpose to some decided cases such as Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 . Jai Singh v. Municipal Corporation of Delhi (2010) 9 SCC 385 . Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 - instead of burdening this judgment with copious quotes therefrom. It has been broadly held therein that the interlocutory orders of the courts below not be interfered with under Article 227 of the Constitution of India unless such orders are palpably vitiated by capriciousness, perversity, error of jurisdiction or such like root causes leading to manifest injustice. Aside of the above, a party aggrieved of an interlocutory order by the trial court is not without remedy as it can lay a challenge to such orders subsequently in regular first appeal under Section 96 CPC against a final judgment and decree if warranted by resorting to Section 105 CPC which specifically permits challenge to all and sundry interlocutory orders passed by the trial court along with the regular first appeals. The amendment to Section 115 CPC effective 1.7.2002 vide the Code of Civil Procedure (Amended) Act, 1999 was intended to be a prescription to overcome delays in trials of civil suits which delays are notorious and adversely commented on publically. The salutary provisions of Article 227 of the Constitution of India cannot be allowed to be casually invoked to circumvent legislative intent clear from the CPC amendment effective 1.7.2002. No doubt the court's supervisory jurisdiction under Article 227 is ever present but its exercise has to be guarded and confined to situations referred to above. None of the aforesaid situations obtain in the instant case. 13. In the circumstances, on the facts of the case, I find no ground to interfere in this petition. Dismissed.