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Himachal Pradesh High Court · body

2019 DIGILAW 1714 (HP)

Yash Pal v. Vijender Singh

2019-11-13

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of the present petition, the petitioner has challenged order dated 11.03.2019, passed by the Court of learned Senior Civil Judge, Shimla, H.P. in CMA No. 204/2019 in Civil Suit No. 44-1 of 2018/07, vide which, an application filed under Order VIII, Rule 1 read with Section 151 of the Code of Civil Procedure by the petitioner, who is defendant in the said suit, for permission to place on record certified copy of order dated 18.01.2019, passed by the Collector, Shimla (Rural), vide which, order passed by the Assistant Collector, 2nd Grade, Shimla on 28.11.2017 has been stayed, stands dismissed by the learned Trial Court. 2. Brief facts necessary for the adjudication of the present petition are as under: Contesting respondents herein have filed a suit for permanent prohibitory injunction against the petitioner as also proforma respondents. At the behest of the contesting respondents (hereinafter referred to as 'the plaintiffs’), demarcation of the suit land has been carried out by the competent Revenue Authority. Said demarcation has not been carried out under the provisions of Order XVI, Rule 9 of the Code of Civil Procedure, but has been carried out on an application so filed by the plaintiffs before the Revenue Authorities. Feeling aggrieved by the said demarcation report, same stands assailed by one of the defendants, i.e., defendant No. 2 before the Appellate Authority, i.e., Collector, Shimla (Rural). In appeal, Appellate Authority has stayed the order of demarcation so passed by the Assistant Collector, 2nd Grade, Shimla dated 28.11.2017. The application which was filed by the petitioner before the Trial Court under Order VIII, Rule 1 of the Code of Civil Procedure was with the prayer to place the said order of stay on record and also for permission to prove the same in accordance with law. This application has been dismissed by the learned Trial Court by assigning the following explanation: “7. Demarcation record relied upon by the plaintiff is only a piece of evidence which has to be scrutinized by this Court so as to satisfy that said demarcation has been conducted in accordance with directions issued by the Financial Commissioner, State of H.P. as well as procedure prescribed under the H.P. Land Revenue Record and H.P. Land Records Mannual. Demarcation record relied upon by the plaintiff is only a piece of evidence which has to be scrutinized by this Court so as to satisfy that said demarcation has been conducted in accordance with directions issued by the Financial Commissioner, State of H.P. as well as procedure prescribed under the H.P. Land Revenue Record and H.P. Land Records Mannual. The order dated 28.11.2017 passed by the learned A.C. Ist Grade does not dispense with satisfaction of this Court and in these circumstances neither the order dated 28.11.2017 passed by the Ld. Assistant Grade Ist Class or order dated 18.01.2019 passed by the Ld. Collector Shimla has any bearing on the demarcation relied upon by the plaintiff. In these circumstances, I am of the considered view that the document sought to be produced on record is neither relevant nor necessary for adjudication of the matter in hand and accordingly the application is dismissed. It be tagged with the main case file.” 3. Feeling aggrieved, the petitioner has filed the present petition. 4. Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as learned Trial Court has erred in not appreciating that till the said demarcation report attains finality, same should not be read in evidence because learned Trial Court could not have relied upon said document as a piece of evidence, legality/validity of which was not only under challenge before the Appellate Authority, but operation of which also stood stayed by the said authority. 5. On the other hand, learned counsel for the contesting respondents has argued that there was no perversity with the order passed by the learned Trial Court, as the demarcation report was liable to be relied upon by the learned Trial Court as a piece of evidence and simply because the said demarcation report stood assailed before the Appellate Authority, this does not precludes learned Trial Court from relying upon the said document. He has further argued that as the demarcation report was not challenged by the present petitioner, therefore also, he had no locus to file application under Order VIII, Rule 1 of the Code to place on record the certified copy of order dated 18.01.2019, passed by the Collector, Shimla (Rural). Mr. He has further argued that as the demarcation report was not challenged by the present petitioner, therefore also, he had no locus to file application under Order VIII, Rule 1 of the Code to place on record the certified copy of order dated 18.01.2019, passed by the Collector, Shimla (Rural). Mr. Sharma has further argued that even otherwise the interim order granted by the Appellate Authority was till the next date of hearing, which was never expressly extended and therefore also, the order so passed is now of no consequence. He further argued that filing of the application even otherwise was nothing but an abuse of the process of law because the petitioner had earlier argued the case before the learned Trial Court on the basis of evidence on record, which included the demarcation report. 6. I have heard learned counsel for the parties and have also gone through the impugned order as also other documents appended with the petition. 7. As I have already mentioned hereinabove, the demarcation report, which the plaintiffs intend to rely before the learned Trial Court is a result of demarcation which was conducted by the competent Revenue Authority on an application which was so filed by the plaintiffs. This Court is not commenting upon the correctness of the said demarcation report, because the legality of the same is under challenge before the competent Appellate Authority. Suffice it to say that because the demarcation was not conducted on the directions so passed by the Court, the aggrieved party, if any, had a right to assail the same before the competent Appellate Authority as per the provisions of the Himachal Pradesh Land Revenue Act. In the present case, not only one of the aggrieved parties approached the Appellate Authority against the demarcation report, but the Appellate Authority, in its wisdom, vide order dated 18.01.2019, has stayed the order which was passed by the Assistant Collector, 2nd Grade dated 28.11.2017. In this peculiar circumstance, in my considered view, it would have had been in the interest of justice, had learned Trial Court allowed the application so filed by the petitioner and ordered that the order which was passed by the Appellate Authority be placed on record. In this peculiar circumstance, in my considered view, it would have had been in the interest of justice, had learned Trial Court allowed the application so filed by the petitioner and ordered that the order which was passed by the Appellate Authority be placed on record. I say so for the reason that in my considered view, learned Trial Court was bound to take into consideration as to whether while deciding the Civil Suit, it was prudent for the said Court to rely upon a demarcation report, validity of which stood challenged in appeal by an aggrieved party. Not only this, learned Trial Court was also bound to take into consideration the factum of the operation of the demarcation report having been stayed by the Appellate Authority. As learned Trial Court erred in doing so while passing the impugned order, therefore, said order is not sustainable in the eyes of law. 8. As far as the contention of learned counsel for the contesting respondents that interim order was passed by the Appellate Authority only till the next date of hearing and the same was not expressly extended is concerned, in my considered view, this plea has no force, because till the time the interim order was not expressly vacated by the Appellate Authority, interim order continued to be in force, because it is not the case of the respondents that on the next date, Appellate Authority refused to extend the stay. 9. As far as another contention of learned counsel for the contesting respondents that filing of the application was nothing but an abuse of the process of law because earlier the petitioner has argued the case before the learned Trial Court without raising any objection to the demarcation report is concerned, in my considered view, it is also of no consequence, because herein besides interest of plaintiffs or petitioner, it is also the interest of judicial propriety which is at stake. While deciding the lis, learned Courts below have to take into consideration the effect of any ancillary proceedings, which may be going on with regard to the documents which are being relied upon by the parties as exhibits before it. While deciding the lis, learned Courts below have to take into consideration the effect of any ancillary proceedings, which may be going on with regard to the documents which are being relied upon by the parties as exhibits before it. Hypothetically, if today learned Trial Court is to decree a suit in favour of the plaintiffs by relying upon the said demarcation report and subsequently the demarcation report is set aside by the Appellate Authority, then but natural, the same will have bearing upon the said judgment and decree, which might be passed by the learned Trial Court. Therefore also, judicial propriety demanded that the application filed by the petitioner should have been allowed, as prayed for. 10. In view of the above discussion, this petition is allowed. Order dated 11.03.2019, passed by the learned Trial Court in CMA No. 204/2019, Civil Suit No. 44-1 of 2018/07, is accordingly set aide. Consequently, the application which was filed by the petitioner under Order VIII, Rule 1 read with Section 151 of the Code of Civil Procedure is allowed. Certified copy of the order, which has been passed by the Appellate Authority, is ordered to be taken on record. Consequences to ensue. The petition stands disposed of, so also pending miscellaneous applications, if any.