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Himachal Pradesh High Court · body

2019 DIGILAW 1930 (HP)

Ajay Kumar v. Arun Jain

2019-12-16

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has challenged order dated 03.04.2019 passed in Civil Suit No. 72 of 2013, titled as Ajay Kumar and others Vs. Arun Jain and others, vide which, an application filed under Order 26, Rule 9 of the Code Civil Procedure for appointment of a Local Commissioner has been dismissed by the learned Court below as well as order dated 08.05.2019, passed by the same Court vide which, the evidence of plaintiffs was closed on the ground that as despite sufficient opportunities neither any plaintiffs’ witness was present nor steps were taken in this regard, therefore, no further indulgence could be shown. 2. As there are two orders of the learned Trial Court assailed by way of this petition filed under Article 227 of the Constitution of India, I will deal with both of them independently. 3. Firstly, I will deal with the order passed by the learned Trial Court vide which it has closed the right of the plaintiffs to lead evidence. 4. Learned counsel for the petitioners has argued that the order vide which right of the plaintiffs to lead evidence has been closed by the learned Trial Court is not sustainable in the eyes of law, as the learned Trial Court has erred in not appreciating that as after dismissal of their application filed under Order 26, Rule 9 of the Code of Civil Procedure, only two opportunities were granted to the plaintiffs to lead evidence and therefore, it could not be said that the plaintiffs had failed to lead evidence despite sufficient opportunities having been granted, because normally at least three opportunities are granted to a party to lead evidence and this extremely important aspect of the matter has been ignored by the learned Trial Court while passing the impugned order and closing the right of the plaintiffs to lead evidence. No other point was urged. 5. On the other hand, learned counsel appearing for the respondents has argued that the order passed by the learned Trial Court suffers from no infirmity, because if one peruses the record of the case, the same would demonstrate that despite about 10 opportunities having been granted by the Court to the plaintiffs, they failed to lead any evidence. 6. On a previous date, this Court had called for the record from the learned Trial Court. 7. 6. On a previous date, this Court had called for the record from the learned Trial Court. 7. A perusal of the record demonstrates that the suit was filed by the plaintiffs before the learned Trial Court on 29.10.2013. After completion of pleadings, the issues were framed by the learned Trial Court on 14.05.2014. Thereafter, the case was ordered to be listed on 09.06.2014 for recording the statements of plaintiffs’ witnesses. On 09.06.2014, learned Trial Court passed the following order: “No PWs present. Time prayed for producing PWs. Allowed. Let PWs. be produced before this Court on 07.07.2014.” 8. On 07.07.2014, the following order was passed: “No PWs present today. Time prayed for producing PWs. Allowed in the interest of justice. Let PWs be again produced before this Court on 02.08.2014. Last opportunity be granted.” 9. Thereafter, on 02.08.2014, the following order was filed: “No. PWs are present. Time prayed. Granted. Now order dated 07.07.2014 be again complied with for 13.078.2014.” 10. On 13.08.2014, the following order was passed: “Case was listed for PWs, but an application U/O 6 Rule 17 CPC filed. Copy supplied. Case be listed for reply on 12.09.2014.” 11. Record demonstrates that on 08.10.2014, when the matter was listed before the learned Trial Court, it was represented before the Court by the parties that there was some possibility of the matter being amicably settled between them and accordingly, the parties were directed to appear before the Mediation Centre on 27.10.2014. Further, as per the record, when the case was listed before the learned Trial Court on 03.12.2014, the Court was informed that the parties were not able to settle the matter. Thereafter, the case was listed again, permitting the defendants to file reply to the application filed under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. The application filed for amendment of the plaint was allowed by the learned Trial Court on 04.03.2015. Thereafter, amended written statement was filed. This was followed by framing of fresh issues by the learned Trial Court on 01.10.2016. On the said date, case was ordered to be listed on 28.11.2016 for recording the evidence of the plaintiffs. 12. On 28.11.2016, learned Trial Court passed the following order: “No PWs present. Time prayed for PWs. Allowed. Let cae be listed for PWs. On 07.01.2017. Last opportunity given. On the said date, case was ordered to be listed on 28.11.2016 for recording the evidence of the plaintiffs. 12. On 28.11.2016, learned Trial Court passed the following order: “No PWs present. Time prayed for PWs. Allowed. Let cae be listed for PWs. On 07.01.2017. Last opportunity given. Steps if any be taken within 7 days.” 13. Thereafter, on 18.01.2017, learned Trial Court passed the following order: “Time prayed for PWs. Granted. Let PWs. be summoned for 21.03.2017. Steps be taken within 15 days. Final opportunity granted.” 14. Record demonstrates that thereafter, the case was listed on 06.04.2017, on which date, an application was filed by the plaintiffs before the learned Trial Court under Order 1, Rule 10 of the Code of Civil Procedure. This application was allowed by the learned Trial Court vide order dated 28.04.2017. 15. After impleadment of Food Corporation of India as a party defendant, the plaintiffs were called upon to amend the plaint. Defendants were also called upon to file amended written statement. After the same was done, the matter was listed before the Court on 20.02.2018, on which date, the case was ordered to be listed on 28.03.2018 for recording the statements of PWs. On the said date, no plaintiffs’ witness was present, however, an application under Order 26, Rule 9 of the Code of Civil Procedure stood filed by the plaintiffs before the learned Trial Court. Reply to the same was sought by the learned Trial Court. The same was filed on 06.08.2018 itself. After three opportunities, rejoinder to the same was filed by the plaintiffs on 28.11.2018. The application was heard and dismissed by the learned Trial Court vide order dated 03.04.2019. The case was ordered to be listed on 08.05.2019 for recording the evidence of plaintiffs’ as last opportunity. However, for the said date, neither any steps were taken nor any PW was present, resulting in Trial Court passing the order closing the right of the plaintiffs to lead evidence. 16. Record of the case thus demonstrates that it is not as if after filing of the suit, only two opportunities were granted by the learned Trial Court to the plaintiffs to lead evidence. 16. Record of the case thus demonstrates that it is not as if after filing of the suit, only two opportunities were granted by the learned Trial Court to the plaintiffs to lead evidence. As from the date when the issues were initially framed on 14.05.2014, four opportunities were granted by the Trial Court to the plaintiffs to lead evidence till the plaintiffs filed an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint. After this application was allowed on 04.03.2015 and after formalities of filing of the written statement etc. were completed and issues were framed afresh on 01.10.2016, three more opportunities were granted by the learned Trial Court to the plaintiffs to lead evidence. Thereafter, though evidence was not led, but as already mentioned above, an application under Order 1, Rule 10 of the Code of Civil Procedure was filed. This application was allowed on 28.04.2017 and thereafter after pleadings were completed, again case was ordered to be listed on 20.02.2018 for 28.03.2018 for recording statements of PWs., on which date also, plaintiffs did not lead any evidence, but filed an application under Order 26, Rule 9 of the Code of Civil Procedure. After dismissal of this application, again last opportunity was granted, which was also not availed of by the plaintiffs. Therefore, it is clearly borne out from the record of the case that in the present case, ample opportunities were granted by the Court to lead evidence, however, at no stage, any steps were taken by the plaintiffs to lead evidence. This Court is not oblivious of the fact that post allowing of the application filed for amendment of the plaint, the circumstances changed, yet, the conduct of the plaintiffs would have been bonafide, if they had taken steps for recording their evidence, presented witnesses for the said purpose and had sought the leave of the Court that on account of subsequent developments or intervening developments, the recording of the statements be deferred. This was not done by the plaintiffs at any stage in this case. On the contrary, record suggests that whenever the matter was listed for recording of statements of the plaintiffs’ witnesses, on one pretext or the other, the matter was got adjourned. This was not done by the plaintiffs at any stage in this case. On the contrary, record suggests that whenever the matter was listed for recording of statements of the plaintiffs’ witnesses, on one pretext or the other, the matter was got adjourned. Not only this, even on the date when an application filed under Order 26, Rule 9 of the Code of Civil Procedure by the plaintiffs was dismissed by the learned Trial Court and the case was ordered to be listed on 08.05.2019 for recording the statements of plaintiffs’ witnesses, the Court categorically mentioned in the order that the said opportunity would be the last opportunity, as the case was targetted one. The conduct of the plaintiffs can be further gauged from the fact that for the said date, i.e., 08.05.2019 also, neither any steps were taken by them to produce the witnesses nor any witness was produced by them on the said date also. Therefore, in this peculiar background of the case, it cannot be said that there is any infirmity with the order passed by the learned Trial Court, whereby it has rejected the right of the plaintiffs to lead evidence. This Court concurs with the findings returned by the learned Trial Court that despite several opportunities having been granted by the learned Trial Court, no endeavour was made by the plaintiffs to lead evidence. Accordingly, the order dated 08.05.2019, passed by the learned Trial Court is upheld. 17. Petitioners are also aggrieved by order dated 03.04.2019, vide which, an application filed under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Local Commissioner has been dismissed. Learned counsel for the petitioners has argued that as the dispute between the parties is a boundary dispute, therefore, the order which has been passed by the learned Trial Court dismissing the application filed by the petitioners under Oder 26 Rule 9 of the Code of Civil Procedure is not sustainable in the eyes of law, as the Court was bound to order appointment of a Local Commissioner, so that demarcation of the disputed property could be effected, which would have ended the litigation between the parties once for all. In support of her contention, she has relied upon the following judgments: “1. Shankar Dass Vs. Municipal Committee, Hamirpur, 2017 (3) SLC 1448. 2. Vishwa Nath Vs. In support of her contention, she has relied upon the following judgments: “1. Shankar Dass Vs. Municipal Committee, Hamirpur, 2017 (3) SLC 1448. 2. Vishwa Nath Vs. State of Himachal Pradesh and another, 2016 (2) SLC 1001.” 18. On the other hand, learned counsel for the respondent has argued that there is no perversity in order dated 03.04.2019, passed by the learned Trial Court, vide which, it rejected the application filed by the petitioners/plaintiffs for appointment of Local Commissioner, as filing of the application was nothing, but an abuse of the process of law, as there is already on record a demarcation record of the land in dispute which was so conducted pursuant to the order which was passed by the learned Trial Court in CWP No. 8246 of 2014. 19. Having heard learned counsel for the parties and having gone through the order passed by the learned Trial Court, vide which it has dismissed the application filed by the petitioners under Order 26 Rule 9 of the Code of Civil Procedure, this Court finds no infirmity with the same. A perusal of the application which was filed under Order 26, Rule 9 of the Code of Civil Procedure demonstrates that it was mentioned therein by the applicants therein that they had filed a suit for permanent prohibitory injunction against the defendants, which subsequently stood suitably amended in order to incorporate changed circumstances of the suit land. It was further mentioned in the application that the amendment had become necessary as defendants had succeeded in dispossessing the plaintiffs/applicants from a part of the suit land by constructing pucca structure and they had also recently built and added to the already constructed structure. It was further mentioned in the application that these changed circumstances could only be asserted in case a Local Commissioner was appointed and was called upon to visit the spot, so that the Commissioner could submit a report with regard to newly raised construction etc. 20. While opposing said application, the non-applicants in the reply which was filed to the same mentioned therein that the filing of the application was nothing but an abuse of the process of law and an endeavour to further delay the matter, as the applicants had no right to insist for demarcation of the disputed property. 21. 20. While opposing said application, the non-applicants in the reply which was filed to the same mentioned therein that the filing of the application was nothing but an abuse of the process of law and an endeavour to further delay the matter, as the applicants had no right to insist for demarcation of the disputed property. 21. Order 26, Rule 9 of the Code of Civil Procedure provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute etc., the Court may issue a Commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. This provision cannot be used by either party to create evidence in its favour. 22. Coming to the facts of this case, the averments made in the application filed under Order 26, Rule 9 of the Code of Civil Procedure were to the effect that during the pendency of the suit, the defendants have dispossessed the plaintiffs from part of the suit land by constructing pucca structure and have also recently built and added to the already constructed structure by them. In my considered view, these are the allegations of the plaintiffs and have to be proved by them by leading cogent evidence. It is not for the Court to assist the plaintiffs in proving their allegations by appointing a Commission under Order 26, Rule 9 of the Code of Civil Procedure. That, in fact, is not the intent of Order 26 Rule 9 of the Code of Civil Procedure. Order 26, Rule 9 of the Code of Civil Procedure comes into picture if the Court deems a local investigation necessary for the purpose of elucidating any matter in dispute. As I have already mentioned above, as the contents made in the application filed under Order 26, Rule 9 of the Code of Civil Procedure are allegations of the plaintiffs, they, but natural, have to be proved by the plaintiffs. In the garb of alleged boundary dispute, the Court cannot be forced in each and every case to appoint a Local Commissioner to find out as to whether the allegations of the party with regard to encroachment etc. are correct or not. In the garb of alleged boundary dispute, the Court cannot be forced in each and every case to appoint a Local Commissioner to find out as to whether the allegations of the party with regard to encroachment etc. are correct or not. That in fact is neither the spirit of Order 26, Rule 9 of the Code of Civil Procedure nor it is the duty of the Court to become a party to the lis by appointing a Commission, simply because a party alleges that there was a boundary dispute and there is encroachment by the other side. 23. The judgment passed by the Hon’ble Coordinate Bench of this Court in Shankar Dass Vs. Municipal Committee, Hamirpur, 2017 (3) SLC 1448 is of no assistance to the petitioners as what weighed with the Hon’ble Co-ordinate Bench was that earlier also, there was an application filed for appointment of a Local Commissioner at the time of framing of issues, but the same stood dismissed by the Court below on flimsy grounds and this persuaded the Hon’ble Co-ordinate Bench to pass the order in the peculiar circumstances of the case by holding that Order 26, Rule 9 of the Code of Civil Procedure casts duty upon the Courts to appoint local commission, if necessary, for proper adjudication of the case, especially where there is a boundary dispute. 24. Similarly, the judgment of this Court in Vishwa Nath Vs. State of Himachal Pradesh and another, 2016 (2) SLC 1001 is also of no assistance in the peculiar facts of this case to the petitioners, because in the said case, this Court on the basis of factual matrix involved therein held as under: “12. In my view, the learned Appellate Court erred in not ordering fresh demarcation of the property by appointing a new Local Commissioner to carry out the necessary demarcation, after coming to the conclusion that the report of the Local Commissioner, Ex. P-4 was incorrect. Appointment of a fresh Local Commissioner would have had advanced the cause of justice. 13. There is no dispute that the issue involved was a boundary dispute. P-4 was incorrect. Appointment of a fresh Local Commissioner would have had advanced the cause of justice. 13. There is no dispute that the issue involved was a boundary dispute. Once the learned Appellate Court entertained doubts about the correctness of the demarcation given by the Naib Tehsildar, then the course that ought to have been adopted by it was to have had appointed a Local Commissioner to demarcate the disputed area, which would have had facilitated the adjudication of the dispute involved. Fresh demarcation would have had facilitated the learned Appellate Court in finding out as to whether there was any encroachment and if so, what was the extent of the said encroachment. However, rather than adopting this course, the learned Appellate Court proceeded to allow the appeal filed by the present respondents and dismissed he suit. This approach of the learned Appellate Court, in my view, is not only incorrect, but is also not in consonance with the law laid down in this regard by this Court.” 25. In view of the observations made hereinabove, as this Court finds nothing wrong with the orders which have been passed by the learned Trial Court, which stand assailed herein, this petition being devoid of any merit, is dismissed, so also pending miscellaneous applications, if any. Parties are directed to appear before the learned Trial Court on 6th January, 2020.