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Himachal Pradesh High Court · body

2019 DIGILAW 1028 (HP)

Sanatan Dharam Pratinidhi Sabha v. State Of H. P.

2019-07-25

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The plaintiff educational institution, nomenclatured as, Sanatan Dharam Education Society Baijnath, District Kangra, H.P., stands, averred in the plaint, to, hence through, an, illegal, and, arbitrary, notification, hence issued on 4.1.2007, rather standing taken over by the defendant State. Consequently, a, declaratory decree is canvassed, for, hence setting aside, the taking over, of the afore nomenclatured institution, hitherto owned by the plaintiff, and, also rendition of, a, decree, to the extent of Rs. 2.40 crores, along with interest at the rate of 18%, besides, the, handing over, of, the original FDR No. RDW 551515 PNB Baijnath, amounting to Rs. 5,00,000/- qua it, and, pledged by the plaintiff society, and, lying with defendant No.5, Registrar, H.P. University, Summer Hill, Shimla, along with upto date interest and interest pendente-lite upon the suit amount, is also espoused in the plaint. 2. The plaintiffs' suit, stands contested, by the defendants, (i) by their instituting, a, written statement to the plaint, (ii) wherein they contend qua the taking over, of, the afore nomenclatured educational institution, of, the plaintiff, being preceded by obtaining, the, necessary permission, and, involving the administrative staff of the college, and, also the afore permission standing incorporated, in notification No. Cha(15)3/86-Shiksha-ka, of, 25.8.1994. Furthermore, it is averred in the written statement, instituted to the plaint, that, the taking over of the afore nomenclatured educational institution, being also preceded, by, valuation, of, of all the assets, and, liabilities. 3. On the basis of the pleadings, of the, contesting parties, this Court had struck the following issues, for determination:- (i) Whether the notification dated 4.1.2007taking over the suit property, issued by defendants is illegal, void and not binding on the interests of the plaintiff? OP parties. (ii) Whether the notification dated 4.1.2007 is unconstitutional as it deprives the plaintiffs of their property without due process of law? OP Parties. (iii) Whether the plaintiffs are entitled to the recovery of the suit amount as prayed for, if so to what extend? OPP. (iv) Whether the plaintiffs are entitled to any interest, as prayed for? OPP. (v) Whether the suit is not maintainable as pleaded by the defendants in their written statement? OPD. (vi) Relief. 4. During, the course of adduction of evidence, by the contesting litigants, and, particularly during the course of recording of the deposition, of, Sh. OPP. (iv) Whether the plaintiffs are entitled to any interest, as prayed for? OPP. (v) Whether the suit is not maintainable as pleaded by the defendants in their written statement? OPD. (vi) Relief. 4. During, the course of adduction of evidence, by the contesting litigants, and, particularly during the course of recording of the deposition, of, Sh. Ajay Lakhanpal, Principal, PSR Government College Baijnath, District Kangra, H.P., the latter adduced, a, photocopy of resolution, of, 28.9.2002, bearing Mark 'X', as, passed by the hitherto Management Committee, of, the afore college, wherein, echoings are borne, vis-a-vis, the prevalent reason, for, resolvings being madeto hand over the college, to, the defendants. At the outset, it is of extreme relevance, to state, that incontemporaneity, of institution, of the written statement, to the plaint hence, by the defendants, (i) neither the afore photocopy, of, the resolution stood appended therewith nor in the list of reliance, the afore document, is, mentioned. It appears that since the defendants acquired knowledge of the afore resolution, only upon, Sh. It appears that since the defendants acquired knowledge of the afore resolution, only upon, Sh. Ajay Lakhanpal, Principal of the afore college, during, the course of his making, a, testification before this Court, rather adducing a photocopy thereof, (ii) thereafter, subsequently, hence, an application, being cast before this Court, constituted under the provisions, of, Section 65 of the Indian Evidence Act, for there-through, leave being strived, for, hence permitting adduction, of, the afore photocopy of the resolution, and, the projected grounds therein, for, the defendants hereat, hence, seeking the afore leave, of, this Court, are, embodied, (a) in the original of resolution of 28.9.2002, being not either traceable nor the original thereof, being either with the government nor being with the Directorate of Education nor, in, the H. P. Secretariat, rather at the time of filing of the written statement, it, hence remaining untraceable, whereupon, the defendants were constrained, to, make the afore ommission, to, hence in contemporaneity, vis-a-vis, theirs instituting written statement, rather append therewith or enter, it, in the list of reliance, (b) despite a high powered committee being constituted, on 26.2.2015, for hence locating or tracing, the original records appertaining to the afore document, yet, the original of the afore document remaining unlocated, and, untraced, (c) the possession, of, original resolution of 28.9.2002, remaining incontemporaniety, vis-a-vis, the defendant State, through, its Administrator rather taking over the management, and, the control of all the assets, and, liabilities of the plaintiffs', afore nomenclatured educational institution, rather being retained by the erstwhile management, (d) and hence, the disappearance or the mis-location of the original, of, the afore resolution hence occurring, at, the stage whereat rather, the, erstwhile management hence held custody thereof. The afore application was resisted, and, contested by the non-applicant, and, upon the contentious pleadings reared upon the afore application, this Court struck, the hereinafter extracted issues:- (i) Whether there are sufficient grounds to allow the application filed under Section 65 of the Indian Evidence Act as alleged? Onus upon applicants. (ii) Whether applicants have no cause of action to file the application as alleged? Onus upon non-applicant. (iii) Relief. 5. In pursuance to the afore pleadings, cast in the apposite application, AW-1 Sh. Onus upon applicants. (ii) Whether applicants have no cause of action to file the application as alleged? Onus upon non-applicant. (iii) Relief. 5. In pursuance to the afore pleadings, cast in the apposite application, AW-1 Sh. Duni Chand Rana, stepped into the witness box, and, during the course of his examination-inchief, he made echoings, vis-a-vis, vigorous efforts, being made, to trace, the original of the resolution of 28.9.2002, and, a report, in concurrence therewith, embodied in Ext. AW-1/A, was also permitted to be tendered, and, was also acquiesced, by the counsel for the non-applicant, for, making embossing(s) thereon, of the afore requisite exhibition mark. Likewise, AW-2 Dr. Ram Chand Verma, during, the course of his examination-in-chief, has testified, qua his signatures occurring thereon, at circles A and B, and, has also proceeded, to, testify qua Dr. Shiv Kumar, the President of the Managing Committee, making his signatures thereon, at Sr. No.1 of page No.1, hence personificatory, of, apposite attendance being hence at page No.2, at, Sr. No.1. Thereafter, he has also proceeded, to testify, qua after the signatures of all persons present in the meeting, being obtained the copies of the afore resolution, being despatched to Secretary Education, Director of Secondary Education, and, to the Vice Chancellor of the University, and, thereafter, the resolution register being taken over, by the management committee, and, thereafter the administrator, being appointed, by the defendants, hence for managing the afore nomenclatured educational institution. During the course of his cross-examination, he has acquiesced, to, a suggestion, as stand meted to him, by the counsel for the non-applicant, vis-a-vis, the appointment, of, an administrator, to control the management, of the afore college (a) and, thereafter, he also named one Mast Ram, wheretowhom rather stood assigned the afore designation, (b) also, upon meteing to him, of, a suggestion, by the counsel, for, the non-applicant, qua incontemporaniety, vis-a-vis, the taking over of the plaintiffs' afore nomenclatured educational institution, there existing a system, of, diarizing, whereto he rendered an answer in the affirmative, (c) however, he voluntarily stated, that, the register diarizing, vis-a-vis documents, and, also the despatch register, being available in the office of the Principal. He has also in his deposition, comprised, in his cross-examination, made an echoing, qua mark AW-1/A, being not falsely prepared, merely to obtain, the permission, to lead secondary evidence, and, also echoed qua non association, of any person, from the afore college, to ascertain, whether any such resolution hence standing passed or not by the college, rather being not deliberate. 6. Aw-5, Sh. P. C. Dhiman, has meted succor, and, has also corroborated, the, deposition of AW-1, and, though has proven, the contents, borne in the application, constituted under Section 65 of the Indian Evidence Act. He has also proven, in his examination-in-chief, qua records vis-a-vis, the despatch of photocopy of the resolution, by Dr. Ajay Lakhanpal, to the, Government of H.P., and, also with respect, to receipt thereof, by the Government of H.P., being available with the Principal, and, by official concerned, working in the establishment of Principal Secretary Education, Government of H.P. In his crossexamination, he has denied the suggestion, rendered to him, qua even earlier, to, the preferment, of the instant application, the defendants being aware, of the custody, of the photocopy of the resolution. The emergence(s), from, the deposition, of the afore applicants witnesses are (i) despite best efforts being made to locate the original of the resolution, the requisite resolution being untraceable, (ii) the mislocation, of, the original, of, the afore resolution rather arising from, vis-a-vis, incontemporaneity, visa-vis, its drawing rather the records appertaining, therewith, being possessed by the erstwhile management, and, there being, a, possibility, of, misplacement, and, mis-location of the original thereof hence , at, the afore stage. From the afore emergence(s), hence emanating, from the deposition, of the applicants witnesses, hence enjoin this Court, to, fathom therefrom, qua rather, the, imperative statutory ingredients, cast in Section 65, of, the Indian Evidence Act, being or not not satiated, provisions whereof, are, extracted hereinafter:- "65. Cases in which secondary evidence relating to documents may be given. From the afore emergence(s), hence emanating, from the deposition, of the applicants witnesses, hence enjoin this Court, to, fathom therefrom, qua rather, the, imperative statutory ingredients, cast in Section 65, of, the Indian Evidence Act, being or not not satiated, provisions whereof, are, extracted hereinafter:- "65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 7. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 7. Given the afore under-scorings, made in the depositions, of the applicants witnesses, qua incontemporaniety, vis-a-vis, the misplacing, of, the requisite resolution, the possession, of, the apt original being, with, the erstwhile management, (i) and, thereupon rather thereat, it, being misplaced or mislocated, besides when its photocopy , is, strived to, with the leave of the Court, hence tendered into evidence, as, secondary evidence thereof (ii) , and, when despite best efforts being made, by the defendants, to trace the original, it, remaining un-located or untraceable, (iii) and prior to the recording of the deposition, of Dr. Ajay Lakhanpal, rather the defendants holding no knowledge, vis-a-vis, its existence, (iv) and, nor when the defendants, deliberately omitted, to, incontemporaniety, vis-a-vis, theirs' instituting, a, written statement(s) to the plaint, hence append, the afore photocopy, with the written statement or making disclosures qua therewith, in, the list of reliance, thereupon also the belated endeavor of the defendants, obviously cannot, be construed to fall outside, the, ambit of Clause (c) of Section 65 of the Indian Evidence Act, and, thereupon, with hence, the, ingredients thereof, being satiated, (d) hence this Court deems it fit to, afford, the espoused relief, vis-a-vis, the applicants, for theirs tendering the photocopy, of, the apposite resolution, in proof of the original, (e) the latter being misplaced and mislocated, preemiently also, the, belated endevour, of, the applicants, is not, construable, to arise, from any default or negligence on their part, to hence produce, it, in a reasonable time. 8. In view of the afore observations, the instant application is allowed and the applicants/defendants are permitted to lead secondary evidence, of, the afore resolution, of, 28.9.2002, and, the afore is permitted, to be, proven in accordance with law. 9. Any observation made herein above, shall not, be taken as an expression of opinion, on the merits of the case, and, the matter shall be decided uninfluenced, by any observation, made, hereinabove.