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2023 DIGILAW 300 (HP)

Amin Chand v. Balbir Singh

2023-05-24

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioners have assailed order dated 26.3.2022 passed by learned Senior Civil Judge, Court No.1, Amb, District Una, H.P. in CMA No. 120-VI-2022 in Civil Suit No. 99-I-2011. 2. Petitioners had filed Civil Suit bearing No. RBT.422-14-2011 titled Amin Chand and others vs. Balbir Singh and another inter-alia praying a decree of declaration to the effect that they had perfected the title over the suit land by way of adverse possession. The predecessor-in-interest of respondent No.1 late Sh. Gurbaksh Singh besides contesting the claim of the petitioners/plaintiffs by filing a written statement had also preferred a counter-claim on the basis of his title over the suit land. A decree for permanent prohibitory injunction was claimed against the petitioners and in alternative a decree for possession was also claimed. 3. On 30.10.2015, the petitioners withdrew the suit filed by them. Resultantly, an order came to be passed by learned Civil Judge (Jr. Division), Court No.3, Amb, District Una, in the following terms: “30.10.2015: Present: Sh.Y.P.Sharma, Adv. for all the plaintiffs except plaintiff Durga Dass, who has expired. Sh. N.K.Sharma, Adv. For the Lr No.2 Balbir of deceased defendant. Lr No.4 of deceased defendant expired. Report of LC received. Ld. Counsel for the plaintiffs, vide his separate statement on record stated that he wants to withdraw the present suit against the defendants. In view of the statement of the Ld. Counsel for the plaintiffs, the present suit is hereby dismissed as withdrawn. However, the counter claim of the defendants survives. File after due completion be tagged with counter claim and shall be consigned to the record room after the counter claim has been finally disposed off.” 4. Petitioners filed CMA No. 120-VI-2022 in their decided Civil Suit invoking inherent jurisdiction of learned trial Court under section 151 of the Code of Civil Procedure (for short, “the Code”) and prayed as under: “It is, therefore, respectfully prayed that this application may kindly be allowed and the civil suit RBT No.429-14-2011 titled Amin Chand etc. vs. Gurbaksh Singh” may kindly be ordered to be restored to its original stage from where it was withdrawn and decided in accordance with law alongwith counter claim filed by the defendant and such other order, as may be deemed just and proper in the peculiar facts and circumstances of the case and justice may be done.” 5. vs. Gurbaksh Singh” may kindly be ordered to be restored to its original stage from where it was withdrawn and decided in accordance with law alongwith counter claim filed by the defendant and such other order, as may be deemed just and proper in the peculiar facts and circumstances of the case and justice may be done.” 5. Respondents contested the application. Learned trial Court vide impugned order dated 26.3.2022, dismissed the application of the petitioners and refused to restore the suit, hence, this petition. 6. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 7. In CMA No.120-VI-2022, the petitioners had pleaded that vide judgment in the case of Gurdwara Sahib vs. Gram Panchayat Village Sirthala and another (2014) 1 SCC 669 Hon’ble Supreme Court had held the plea of adverse possession to be not available to plaintiff as a sword and it was on such dictum that petitioners had withdrawn the suit on 30.10.2015. It was further averred that later the Hon’ble Supreme Court in Ravinder Kaur Grewal and others vs. Manjit Kaur and others reported in (2019) 8 SCC 729 and also in Narender Kumar Tripathi vs. Karuna Auddy and others (2020) 3 SCC 220 , had clarified that the plea of adverse possession could be raised as a sword as also in defence. According to petitioners, the application CMA No. 120-VI-2022 was filed by them in view of the changed legal position. 8. Learned trial Court dismissed the application of the petitioners on the ground that the withdrawal of suit by petitioners amounted to abandonment of claim under Order 23 Rule 1 of the Code of Civil Procedure. Once the plaintiffs had exercised option to withdraw the suit, there was no provision in the Code to restore the suit to its original number. As per learned trial Court, Section 151 of the Code was not a substantive provision and the Court was not vested with power or jurisdiction to do anything which was not otherwise permissible under law. Learned trial Court also concluded that such jurisdiction otherwise also could be exercised to take away substantive rights that had accrued in favour of the other party. 9. Learned trial Court also concluded that such jurisdiction otherwise also could be exercised to take away substantive rights that had accrued in favour of the other party. 9. Learned counsel for the petitioners contended that the procedural law is handmaid of justice and its purpose is to achieve the ends of justice and not to shut the door thereof for the parties. He further submitted that the substantive rights of parties cannot be made to suffer at the altar of procedural law. Placing reliance on the judgment passed by the Hon’ble Supreme Court in Amteshwar Anand Vs. Virender Mohan Singh and others (2005) 4 RCR (Civil) 485, it was contended that the learned trial Court was not justified in refusing to exercise the jurisdiction under Section 151 of the Code for restoring the suit to its original number. 10. The order dated 30.10.2015 passed by learned Civil Judge, Court No.3, Amb, nowhere discloses that petitioners had opted to withdraw the suit in the wake of dictum of judgment passed in Gurdwara Sahib (supra). The order only records that the counsel for the plaintiffs had stated vide his separate statement that he wanted to withdraw the suit against the defendants. On such statement, learned trial Court had dismissed the suit as withdrawn. Petitioners have not contested such factual position. They have also not placed on record the statement of their counsel so made before the learned trial Court on the basis of which suit was withdrawn. That being so, the petitioners cannot now be allowed to say that they had withdrawn the suit on the basis of the judgment passed by the Supreme Court and now they wanted to get it restored in view of the changed legal position as alleged. 11. Thus, the challenge to impugned order by petitioners cannot succeed as the petitioners had failed to lay necessary factual foundation before learned trial Court. In view of what has been held herein, I do not find it necessary to deliberate further on the contours and scope of powers of Civil Court under Section 151 of the Code of Civil Procedure. 12. Further, it is also evident from the record that the counter-claim filed by the respondent is pending adjudication before learned trial Court. While passing the impugned order, learned trial Court has concluded as under: “6. 12. Further, it is also evident from the record that the counter-claim filed by the respondent is pending adjudication before learned trial Court. While passing the impugned order, learned trial Court has concluded as under: “6. Moreover, plaintiffs/applicants have all plea available to them as non-counter claimants in the counter claim filed by defendant –counter claimant which were available them in suit filed by them. So no prejudice shall be caused to the applicants. Therefore, in view of my aforesaid observations and considered opinion, this application is disposed of being dismissed. Application after due completion/registration be tagged with main case file.” Admittedly, defendants have not assailed the impugned order dated 26.03.2022 passed by learned trial Court. 13. Even otherwise, the right of petitioners to defend themselves in counter-claim on the plea of adverse possession cannot be said to have eclipsed. Order 23 Rule 1 (4) only bars the remedy of instituting fresh suit in respect of such subject matter, which the plaintiffs have abandoned under sub rule 1 (1) of Order 23 of the Code. It is not in dispute that when the plaintiffs withdrew the suit, the counter-claim was already pending. That being so, the right of plaintiffs to take plea of adverse possession as a defence in counter-claim shall not in any manner be affected by withdrawal of the suit. In Gurdwara Sahib (supra), the Hon’ble Supreme Court while holding the suit for declaration of title to be not maintainable on the plea of adverse possession has held as under: “10. ….We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case the respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of the property by adverse possession…” 14. In light of above discussion, I find no reason to interfere with the impugned order dated 26.03.2022 passed by learned Senior Civil Judge, Court No.1, Amb, District Una, H.P. in CMA No. 120-VI-2022. However, it is clarified that the passing of impugned order shall not in any manner affect the right of plaintiff to contest the counter claim of defendants on the strength of plea of adverse possession. 14. Petition is accordingly disposed of in the aforesaid terms, so also the pending application(s), if any.