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2019 DIGILAW 1399 (HP)

Shiv Kumar v. Kalyan Chand

2019-09-17

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged order, dated 08.04.2019, passed by the Court of learned Senior Civil Judge, Court No. 1, Una, H.P., vide which, an application filed under Order VII, Rule 14(3) of the Code of Civil Procedure by the petitioner herein, has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that a suit for declaration has been filed by the petitioner against respondent No. 1, which is pending adjudication before the Court of learned Senior Civil Judge, Court No. 1, Una, H.P. The suit was filed as far back as in the year 2007. In the year 2019, when the case was at the arguments stage, an application was filed by the petitioner under Order VII, Rule 14(3) of the Code of Civil Procedure, in which, a prayer was made that the petitioner be allowed to produce on record and prove the documents, i.e., list of Khasra numbers of Mauja Raipur, copy of Khasra Paimaish 1868 of Mauja Raipur, Jamabandi for the year 1912-1913, certified copies of Missal Hakiat Bandobast for the year 1912-1913, Jamabandi for the year 1920-1921 in Urdu with Hindi version, Missal Hakiat Istemal for the year 1964-65, Jamabandi for the year 1972-73, Missal Hakiat for the year 1986-87, Missal Hakiat for the year 1988-89, Jamabandi for the year 2002-03 and Jamabandi for the year 2003-2004 by way of additional evidence. The reasons mentioned in the application as to why the documents could not be placed on record earlier, were that the documents in issue were appended alongwith the appeal filed against the order which was passed on the application filed by the petitioner under Order 39, Rules 1 and 2 of the Code of Civil Procedure, which was dismissed by the learned Trial Court on 18.01.2008 and it was only at the time of preparation of arguments that the learned counsel realized that the documents were not on record, which led to the filing of the application. On the query of the Court, learned counsel for the petitioner informs that after the application filed under Order 39, Rules 1 and 2 of the Code was dismissed by the learned Trial Court on 18.01.2008 and the appeal filed against the said order was disposed of by the learned Appellate Court in the year 2008 itself. 3. A perusal of the averments made in the application demonstrates that there is no explanation in the application as to what took the petitioner 11 years to file the application. The reason mentioned therein that the documents were in the appeal record and it is only at the time of arguments that learned counsel realized that they were not on record, in my considered view, cannot be taken to be a reasonable reason. There is a gap of 11 years as between the adjudication of the appeal and filing of the application. But natural, in the interregnum, pleadings were completed, which includes recording of evidence of the plaintiff as also the defendant. There is nothing in the application to substantiate as to why the application was not filed at the time when evidence was being led by the plaintiff or within some reasonable time as from the date when the appeal was disposed of by the Appellate Court, which was filed by the petitioner against the order passed on his application under Order 39, Rules 1 and 2 of the Code. This demonstrates that there was no due diligence on the part of the petitioner in pursuing the suit filed by him. 4. A perusal of the order impugned demonstrates that while dismissing the application, learned Court has observed that filing of the application by the petitioner after years was nothing, but an abuse of the process of law, especially when the application stood filed after number of opportunities were availed by the petitioner/plaintiff for arguing the case. In my considered view, the reasons which have been assigned by the learned Trial Court while dismissing the application, are not perverse. In fact, the reasons assigned by the learned Trial Court for dismissing the application are duly borne out from the record of the case. In these circumstances, this Court sees no reason to interfere with the order impugned, as this Court finds no merit in the present petition. Accordingly, this petition is dismissed. No order as to costs.