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2025 DIGILAW 791 (HP)

Dharam Singh v. Gurditta Singh

2025-04-24

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. This petition has been filed under Article 227 of the Constitution of India with a prayer to set aside order dated 05.05.2017 passed by the learned Civil Judge (Senior Division), Paonta Sahib, District Sirmaur, H.P. in CMA No. 83/6 of 2017 in Civil Suit No. 2157 of 2013 (108/1 of 16/09), whereby the application of the petitioners herein seeking leave to produce additional evidence has been rejected. 2. Petitioners are the defendants before the learned trial Court. The suit has been filed by the plaintiffs (respondents herein) for a decree of declaration to the effect that the plaintiffs are having right to take the water through pipes for drinking purpose from Khasra No.1872 above the water Mill (Gharat) in Khasra No.1677 and the defendants have no right, title and interest to interfere in any manner whatsoever or to prevent the plaintiffs from taking the water through G.I. pipes to their Village Kanti. Further, a decree of permanent prohibitory injunction has also been claimed to restrain the defendants from preventing the plaintiffs from taking water through pipes to their own village Kanti or to cause any damage to the laid pipes in any manner whatsoever. Relief of damages to the tune of Rs.2000/- has also been sought. 3. A perusal of the plaint reveals the premise on which the suit has been filed. Plaintiffs are permanent residents of Village Kanti in revenue Village Kanti Mashwas, Sub-Tehsil Kamraoo, District Sirmour, H.P. The defendants are mentioned as residents of Village Mashwa in same revenue Village. The residents of both the villages, according to the plaintiffs, were being fed for water supply through a perennial water source (Nallah). A gravitational water supply scheme was also provided to the villagers which did not yield the requisite results and lastly the State Government proposed to provide a lift water scheme for the villagers. 4. The grievance of the plaintiffs is that despite all the above efforts, the residents of village Kanti were not getting sufÏcient water. The defendants had laid private pipe line from the water source to their village and when the plaintiff also tried to lay water pipe line from the water source to their village, the defendants objected and on such cause of action, the suit has been filed. 5. The defendants had laid private pipe line from the water source to their village and when the plaintiff also tried to lay water pipe line from the water source to their village, the defendants objected and on such cause of action, the suit has been filed. 5. Thus the dispute inter se the parties is with respect to the distribution of water to both the village for drinking and irrigation purposes. 6. The parties have already led their respective evidence. The suit was fixed for arguments and at that stage, the defendants came up with an application to lead additional evidence. 7. The defendants sought the leave of the learned trial Court to produce on record a certificate issued by the SDO, IPH Sub-Division Kafota, certifying that the lift irrigation and drinking scheme was functioning well. In addition, permission was also sought for proving the said document in accordance with law. 8. It was averred in the application that the lift irrigation and drinking water scheme was under construction at the time when the defendants were leading evidence. The said scheme had since been completed and supply of water was available to both the villages. Therefore, the SDO, IPH Kofta Sub Division had issued a certificate to that effect. According to the defendants, this piece of evidence was material for deciding the matter in controversy. It was also mentioned that since the scheme was completed during the pendency of the suit, the defendants could not place on record the said certificate on earlier occasion. 9. The plaintiffs contested the application by filing a reply on the grounds that the suit was filed in the year 2009. The defendants were trying to delay the disposal of the suit by filing the application. The document sought to be placed and proved on record by the defendants was alleged to be irrelevant, false and fake being contrary to the spot position. It was specifically mentioned that the lift irrigation and drinking water scheme was not functioning on the spot. Though the said scheme was inaugurated but on the date of inauguration, the arrangements were made by filling up the tanks by tankers. In this manner the fact that the scheme was in working condition has been denied. 10. It was specifically mentioned that the lift irrigation and drinking water scheme was not functioning on the spot. Though the said scheme was inaugurated but on the date of inauguration, the arrangements were made by filling up the tanks by tankers. In this manner the fact that the scheme was in working condition has been denied. 10. The learned trial Court vide impugned order has dismissed the application on the ground that the application was moved after availing a number of opportunities for addressing arguments. For such reason, the learned trial Court did not find it appropriate to exercise its inherent power to grant the defendants another opportunity for leading additional evidence. 11. I have heard learned counsel for the parties and have also gone through the entire record carefully. 12. Shri R.K. Gautam, learned senior counsel for the defendants has submitted that the impugned order is bereft of any reasoning and is completely non speaking. He contended that the evidence sought to be produced by the defendants was very material to the adjudication of issues framed in the suit. According to him, lift irrigation and drinking water scheme was installed during the pendency of the suit and document which was sought to be produced by way of additional evidence was not available with the defendants at the time of leading evidence. 13. On the other hand, Shir Nitin Thakur, learned counsel for the plaintiffs has submitted that the application for additional evidence was not bonafide. It was filed at much belated stage when about 15 to 20 adjournments had already been sought for addressing arguments. He further pointed out that the learned trial Court had appointed a Local Commissioner to visit the spot vide order dated 01.10.2016. The Local Commissioner had submitted the factual spot report. The defendants had filed objections to such report which were dismissed by the learned trial Court vide order dated 17.04.2017. The defendants having failed to challenge the said order were not entitled to file the application for additional evidence. 14. Having considered the rival submissions, I am of the view that the learned trial Court has failed to exercise the jurisdiction vested in it, in accordance with law, for the reasons detailed herein after. 15. The application before the learned trial Court was with a prayer to lead additional evidence. 14. Having considered the rival submissions, I am of the view that the learned trial Court has failed to exercise the jurisdiction vested in it, in accordance with law, for the reasons detailed herein after. 15. The application before the learned trial Court was with a prayer to lead additional evidence. The power to grant or refuse such prayer is inherently vested in the Civil Court. What is required to be seen is whether the proposed additional evidence was relevant to the issue and would help the Court in adjudication of the matter. In addition, the Court has to see whether the proposed evidence was available with the party at the time of leading evidence or whether the party was prevented from leading such evidence despite due diligence. 16. The impugned order reveals that the learned trial Court has not considered any of these legal requirements. No doubt, the bonafides of a party seeking to invoke inherent jurisdiction of Court is relevant factor but that cannot be used as a sole criteria to decide the rights of the parties. 17. As noticed above, the dispute inter se the parties is with respect to the distribution of drinking and irrigation water. Admittedly, the State Government has provided a lift irrigation and drinking water scheme for the villages. The question is as to whether after commissioning of said scheme, the plaintiffs and defendants are still getting water or not. The defendants have come up with a plea that the water is available whereas the plaintiffs are denying this fact. In such circumstances, the evidence sought to be produced by the defendants cannot be said to be irrelevant or alien to the controversy between the parties. The fact sought to be proved by way of additional evidence, if brought on record, will definitely help the Court in proper and effective adjudication of the matter. 18. The facts that the lift water scheme was made operational during the pendency of suit and that such plea was not available to the defendants at the time when they had led evidence, have not been denied by the plaintiffs. 19. The report of the Local Commissioner, as pointed out by the learned counsel for the plaintiff, is also a piece of evidence with the learned trial Court. Such piece of evidence has to be appreciated along with other evidence. 19. The report of the Local Commissioner, as pointed out by the learned counsel for the plaintiff, is also a piece of evidence with the learned trial Court. Such piece of evidence has to be appreciated along with other evidence. The order dated 17.04.2017 passed by the learned trial Court, whereby the objections to the report of Local Commissioner filed by the defendants had been dismissed also does not reveal that the learned trial Court has given any findings as to the factual position existing on the spot. 20. Learned counsel for the plaintiffs has also argued that this Court has restrictive jurisdiction under Article 227 of the Constitution of India and can be used sparingly in an appropriate case. The proposition of law as raised by the learned counsel cannot be disputed, however, I have already noted above that the learned trial Court has passed the impugned order without adverting to any of the relevant factors and criteria. Further, the impugned order is bereft of any reason and non speaking. Thus, I find it to be a fit case for interference by using powers under Article 227 of the Constitution of India . 21. In view of the above analysis, the instant petition is allowed and the impugned order is set aside. The application of the defendants for leading additional evidence is allowed. Learned trial Court is directed to allow the defendants to lead additional evidence as prayed for by them. Needless to say that the plaintiffs shall have every right to rebut such evidence, if so required. 22. The parties are directed to appear before the learned trial Court on 13 th May, 2025. 23. Records of the learned trial Court be sent back forthwith. 24. Petition is accordingly disposed of, so also, the pending applications, if any.