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2025 DIGILAW 577 (HP)

Tara Chand v. Munshi Ram

2025-04-01

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Heard. 2. By way of this petition, petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, by seeking the prayer in following terms:- “It is therefore, prayed that the petition may be allowed and the observations/findings recorded by learned first Appellate Court in judgment dated 31.3.2015 reframing Issue No.1 and such other findings considering the proposed amendment plaintof the plaintiff-respondent may be set aside by directing the learned trial Court to proceed with the trial of the suit land dispose of in accordance with law”. 3. Brief facts necessary for adjudication of the petition are that the respondent/plaintiff Sh. Munshi Ram filed a suit for permanent prohibitory and mandatory injunction against the petitioners/defendants being Civil Suit No. 130 of 2007 on the files of learned Civil Judge (Senior Division), Kangra. The suit was dismissed by the learned trial Court vide judgment and decree dated 29.12.2012. 4. The respondent/plaintiff assailed the judgment and decree passed by the learned trial Court in first appeal under Section 96 of the Code of Civil Procedure. The appeal of the respondent/plaintiff was heard by the learned Additional District Judge-III, Kangra at Dharmshala and was decided vide judgment and decree dated 31.3.2015. The suit was ordered to be remanded to learned trial Court for decision afresh, as the learned Appellate Court had reframed Issue No.1 as under:- “i) Whether the plaintiff is continuously using the mainds/edges of the land of the defendants to pass through on his land on khasra No. 758 and 761 for agriculture purposes as per custom prevailing in the area as alleged? OPP.” 5. The grievance of the petitioners/defendants is that the learned Appellate Court had reframed Issue No.1, without there being pleadings to that effect in the plaint. It is submitted that though the respondent/plaintiff had sought leave of the Court to amend the plaint by seeking to incorporate that the plaintiff had right of passage through the suit land by way of easement of custom. The amendment, as sought by the plaintiff was denied by dismissing the application moved by the plaintiff in that behalf vide order dated 2.3.2012. The amendment, as sought by the plaintiff was denied by dismissing the application moved by the plaintiff in that behalf vide order dated 2.3.2012. It is also pointed out that the learned Appellate Court had made a reference in the judgment dated 31.3.2015 to existence of pleadings as to easement of custom in the plaint, but such observation by the said Court is stated to have been made on the basis of proposed amendment in the plaint, which was never allowed to be taken on record. 6. Admittedly, the petitioners/defendants had not assailed the judgment and decree passed by the learned Appellate Court and had rather chosen to join the proceedings before the learned trial Court in terms of the directions issued by the learned Appellate Court. The instant petition came to be filed after an order dated 3.8.2016 was passed by the learned trial Court, making observations in following terms:- “It is further rightly submitted that despite this due to over-sight and inadvertent omission, additional issue appears to have been framed on the basis of proposed amendment plaint, particularly on the basis of para NO.4 of the same. Since proposed plaint was never taken on record, it is evident that this error took place due to omission on the part of Civil Ahelmad in placing proposed amendment plaint despite its rejection in part A, rather than tagging it with dismissed CMA. Nevertheless, for all intent and urposes, the plea raised by learned counsel for defendant cannot be overlooked, as it will amount to perpetuate the inadvertent error, which was never intended by learned ADL-3, Kangra at Dharmshala. Under these peculiar circumstances, present application under Order 6 Rule 17 CPC cannot be entertained as it will be against the judicial decorum and may amount to defiance of order passed by superior Court. However, it is equally well settled law that error on the part of the Court cannot prejudice the party, if so, this Court, before passing any order under Order 6 Rule 17 CPC hereby request the parties, particularly the defendant, to exhaust appropriate remedy to rectify the clerical act or omission as cited above on or before next date, which is now fixed for22.8.2016.” 7. It also cannot be disputed that the petitioners /defendants had a right to file an appeal against the judgment and decree dated 31.3.2015, passed by the learned Appellate Court. It also cannot be disputed that the petitioners /defendants had a right to file an appeal against the judgment and decree dated 31.3.2015, passed by the learned Appellate Court. Having not done so, in my considered opinion, they cannot invoke the jurisdiction of this Court under Article 227 of the Constitution of India. It is more than settled that this Court will not exercise the aforesaid jurisdiction in cases where the party has failed to avail the remedy otherwise available to it, in accordance with law, against the order, direction or conduct of the Courts. That being so, I find no merit in the instant petition. 8. Since the petitioners/defendants have raised a question of propriety of the judgment and decree passed by the learned Appellate Court on the basis of pleadings, which were not on record, the said question can be decided by the same Court i.e. the Court of Additional District Judge-III, Kangra at Dharmshala in review, if filed before such Court. 9. Accordingly, this petition is dismissed with the observations as made hereinabove. Nonetheless, in case petitioners/defendants chose to file a review petition before the learned Additional District Judge-III, Kangra at Dharmshala within a period of six weeks from today, the said Court shall duly consider the factum of pendency of this petition for the purpose of limitation in accordance with law. 10. Keeping in view the long pendency of litigation, it is directed that in case the review petition is filed, as observed above, the same shall be decided by the Additional District Judge-III, Kangra at Dharmshala within eight weeks of the filing of the review petition and subject to observance of above directions till the decision of the review petition, further proceedings before the learned trial Court shall remain stayed. Pending applications, if any, also stand disposed of. Records be sent back forthwith.