Himachal Pradesh High Court
Prem Raj Son Of Shri vs Jumla Jamindaran Village Telangi ... on 24 August, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 24th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL MISC. PETITION MAIN (ORIGINAL) NO.380 OF 2017
BETWEEN:
JUMLA JAMINDARAN,
VILLAGE PANGI
NUMBERING 214 (KHEWAT
HOLDERS)THROUGH:
1. PREM RAJ SON OF SHRI
DIWAN SINGH.
2. AMIT KUMAR, SON OF SHRI
RAM PARKASH NEGI,
BOTH RESIDENTS OF
VILLAGE PANGI, TEHSIL
KALPA, DISTRICT KINNAUR,
H.P.
....PETITIONERS.
(BY SHRI SUNEET GOEL, ADVOCATE )
AND
JUMLA JAMINDARAN
VILLAGE TEHANGI,
NUMBERING 75 (KHEWAT
HOLDERS) THROUGH:
1. SHRI HARISH KUMAR,
SONOF SHRI INDER LAL.
2. MAN SINGH, SON OF SHRI
SUDERSHAN LAL.
::: Downloaded on - 31/01/2022 22:56:33 :::CIS
2
BOTH RESIDENTS OF
VILLAGE TALANGI, TEHSIL
KALPA, DISTRICT
.
KINNAUR, H.P.
3. STATE OF HIMACHAL
PRADESH THROUGH
COLLECTOR, KINNAUR.
....RESPONDENTS.
(BY. SHRI BHUPENDER GUPTA, SENIOR ADVOCATE, WITH
MR. JANESH GUPTA, ADVOCATE, FOR RESPONDENT NO.1.
MR. ASHOK SOOD, ADVOCATE GENERAL, WITH
MR. SUMESH RAJ, MR. SANJEEV SOOD, ADDITIONAL
ADVOCATES GENERAL, AND MR. J.S. GULERIA, MR. KAMAL
KANT CHANDEL, DEPUTY ADVOCATES GENERAL, FOR
RESPONDENT NO.3.
MR.K.D.SOOD, SENIOR ADVOCATE, WITH MR.MUKUL SOOD
AND MR. HET RAM, ADVOCATES, FOR PROPOSED
RESPONDENT, NAMELY, SHRI CHANDU LAL.
MR. G.D.VERMA, SENIOR ADVOCATE, WITH MR.ROMESH
VERMA, ADVOCATE, FOR PROPOSED RESPONDENT,
NAMELY, SHRI JAR CHERRING.
RESPONDENT NO.2 IS STATED TO HAVE DIED)
Whether approved for reporting?1 Yes
This Petition coming on for admission this day, the Court passed the
following:
JUDGMENT
By way of this petition, filed under Article 227 of the
Constitution of India, the petitioners have prayed for quashing of
order dated 23.08.2017, passed by the Court of learned Senior Civil
Judge, Kinnaur at Recong Peo, District Kinnaur, H.P., in a
.
miscellaneous application filed under Order 6, Rule 17 read with
Section 151 of the Code of Civil Procedure, in Civil Suit No.11-R/1 of
1999/2014, titled as Jumla Jamindaran Village Pangi & others
Versus Jumla Jamindaran Village Telangi & others, by the private
defendants therein, vide which, said application filed for amendment
of the written statement was allowed by the learned Court below.
2. Brief facts necessary for the adjudication of the present
petition are as under:-
A Civil Suit stands filed by the petitioners/plaintiffs, for
declaration to the effect that the plaintiffs have customary rights over
the suit land and the order to the contrary passed by Settlement
Collector is bad in law and liable to be set aside and the defendants
have no right over the suit land.
3. Record demonstrates that earlier a suit was filed in the
year 1984 by the plaintiffs and decreed on 26.06.1987. In appeal, the
learned District Judge remanded the case to the learned Trial Court
on the question of jurisdiction and the court of learned Senior Sub
Judge, Kinnaur at Recong Peo, District Kinnaur, H.P., vide judgment
dated 30.08.1994 held the suit to be beyond the pecuniary
jurisdiction of the said Court and the plaint was returned for its
proper presentation. Thereafter, the suit was filed in the Court of
learned District Judge, Kinnaur, H.P., which was decreed on
03.10.2001. The defendants filed an appeal, i.e. RFA No.450 of 2001
.
before this Court, which appeal was allowed vide judgment dated
30.05.2014 and the matter was remanded back to the learned
District Judge for decision afresh after impleading the State of
Himachal Praesh as a defendant. The suit thereafter stood transferred
to the Court of learned Civil Judge (Senior Division), Kinnaur, on
account of the change of the pecuniary jurisdiction of the learned
Courts. Thereafter, the State of Himachal Pradesh stood impleaded as
a party defendant and written statement to the suit was filed by the
newly added defendant, which is dated 24.09.2014. An application
was filed under Order 6, Rule 17 read with Section 151 of the Code of
Civil Procedure by the original defendants, seeking amendment in the
written statement to the following effect:-
"a. That in preliminary objections add "new para 5" and
further add words "That the suit of the plaintiffs is
hopelessly time barred since the plaintiffs are challenging
the order of settlement Collector decided on 02.09.1983 in
the suit being filed on 23rd day of October, 1999, hence
same is liable to be dismissed on this score only."
b. In para 3 after the last word alleged add words "there
is a passage having constructed by cutting rocks through
Kacha Dhank, which have been used since time
immemorial for to and fro to the suit land by
khewatdarans of Village Telangi for exercising their
customary rights."
4. It was mentioned in the application that on account of
inadvertence at the time of drafting the written statement, defendants
could not put forth their plea of accessibility of the suit land through
a path passing through 'Kacha Dhank', which stood constructed by
cutting of rocks and which was in use for to and from the suit land by
.
Khewatdarans of village Talangi for exercising customary rights over
the suit land since time immemorial. It was further pleaded in the
application that the challenge to the order of the Settlement Collector
by way of a suit filed by the plaintiffs was time barred as the order
stood passed by the Settlement Collector on 02.09.1983, whereas the
suit stood filed on 23.10.1999, therefore, plea of limitation was
sought to be taken. On these pleas, a prayer was made by the
defendants for permission to amend the written statement. This
application is dated 25.09.2014.
5. The application was resisted by the plaintiffs, inter alia,
on the ground that the original suit was filed in the year 1984 and
decreed on 26.06.1987 and therefore, the same was not time barred.
It stood explained in para-1 of the reply as to how the suit was within
limitation qua the order passed by the Settlement Collector was there.
With regard to the other amendments sought by the applicants, the
same were resisted, inter alia, on the ground that there was no cogent
explanation as to why said stand was not taken by the applicants
earlier at the time of filing the written statement or within some
reasonable time thereafter and as per the non-applicants, the intent
of the applicants was to linger on with the litigation by seeking
amendment on incorrect or false facts.
6. By way of the impugned order, the application stood
allowed by the learned Court below. The reasons assigned by the
.
learned Court below while allowing the application, inter alia, were
that the rigors of Order 6, Rule 17 of the Code of Civil Procedure after
amendment were not applicable to the case as the suit was filed
before the amendment was carried out in the provisions of Order 6,
Rule 17 of the Code of Civil Procedure. It further held that the
amendment prayed was in the written statement and the rigors
applicable while dealing with the amendments to a plaint were not
applicable while dealing with an application, praying for amendment
in the written statement where a liberal approach could be taken by
the Court. It further held that the amendments which are essential to
determine the real controversy, notwithstanding that there was
negligence or omission on the part of the parties, should be permitted
so that the parties are not forced to take recourse to the legal
proceedings again and again. Learned Court below also held that no
delay would be caused if proposed amendments were allowed as the
State which was added as a party to the suit pursuant to the
directions passed by the High Court had filed its written statement
and besides this, the proposed amendments were also essential for
effective adjudication of the controversy between the parties. By
assigning said reasons, the application stood allowed by the learned
Court below subject to payment of costs of Rs.5,000/-.
7. Feeling aggrieved, the order stands assailed by the
plaintiffs by way of this petition.
.
8. Learned counsel for the petitioners has argued that the
order passed by the Learned Court below is not sustainable in the
eyes of law as the learned Court has erred in not appreciating that in
the application filed praying for amendment in the written statement,
due diligence was not shown and the provisions of Order 6, Rule 17
of the Code of Civil Procedure cannot be permitted to be invoked by a
party to fill up the lacunae. He has further argued that the learned
Court erred in not appreciating that the Civil Suit was initially filed in
the year 1984, to which written statement stood filed by the
defendants and yet the amendments sought after almost three
decades, stood allowed by the learned Court below without dwelling
on this aspect of the matter as to why the same were either not
incorporated in the main written statement or were not incorporated
may be by way of amendment within some reasonable time, as it is
not the case of the defendants that the cause they intended to
introduce by way of amendment was a subsequent cause which arose
after the filing of the Civil Suit or the written statement. He has
further submitted that the impugned order is an unreasoned order.
On these basis, a prayer has been made by the learned counsel for
setting aside the impugned order.
9. Defending the order, learned Senior Counsel, appearing
for the respondents has argued that there is no infirmity with the
.
order passed by the learned Court below, for the reason that one of
the amendment which is relatable to the issue of limitation being a
matter of law and fact, can be allowed to be raised by a party at any
stage and the other amendments sought were also only clarificatory
in nature if read harmoniously with the written statement earlier filed
to the original suit. He has further submitted that the learned Trial
Court has correctly held that amendments which go to the root of the
controversy, should be allowed and the same cannot be rejected on
the ground of negligence of a party because the intent of the Court is
to impart justice between the parties before it and if facts are placed
before the Court which are necessary for the adjudication of the lis,
may be by way of amendments, then same cannot be brushed aside
on the ground of delay etc. Learned Senior Counsel also submitted
that it was rightly held by the learned Trial Court that the parameters
for allowing the amendments in the written statement are not as
rigorous as they are to amend the plaint. As per him, as the
amendments sought in the written statement otherwise also do not
change the nature of the defence taken by the defendants in the
earlier filed written statement, therefore also, there is no infirmity
with the order passed by the learned Trial Court. Learned Senior
Counsel further submits that in exercise of its power of
superintendence, ordinarily this Court is not to interfere with the
order passed by the learned Court below in case the view which has
.
been taken by the learned Court below is one of the possible views on
the basis of material before it and it is only in the cases of perversity
that the Court interferes. Accordingly, a prayer has been made for
dismissal of the application.
10. I have heard learned counsel for the parties and have
also gone through the impugned order as well as record of the case.
11. It is not in dispute that the suit is an old one and the
written statement which stood filed by the defendants to the same,
copy thereof is appended with the present petition as Annexure P-2,
was also filed somewhere in the month of April, 2000. However, it is
also a matter of record that the matter stood remanded back for fresh
adjudication by the High Court after setting aside decree and
judgment with the direction that the State of Himachal Pradesh be
impleaded as a party defendant in the suit. After the State was
impleaded as a party defendant and opportunity was given to the
State to file a written statement, it filed its written statement to the
plaint in the month of September, 2014. The application which stood
filed under Order 6, Rule 17 of the Code of Civil Procedure, praying
for amendment in the written statement is also dated 25.09.2014.
This demonstrates that there was not a considerable delay in filing of
the said application as taken from the date, when the written
statement to the plaint was filed by one of the parties to the Civil
Suit. The prayer which stood made in the application was to allow the
.
applicants to take up the plea of limitation by way of a preliminary
objection and to add the factum of existence of a passage which stood
constructed by cutting rocks through 'Kacha Dhank' by carrying out
necessary amendments in para-3 of the written statement. The issue
of limitation being a mixed question of law and facts can be allowed
to be raised by a party at any stage if the Court is convinced that
adjudication on the same is necessary to arrive at a fair decision and
in this view of the matter, the prayer to this effect being allowed by
the learned Court below, cannot be faulted with as the same goes to
the core of the dispute between the parties. Coming to the other
amendment sought by way of the application, as mentioned above, it
was to introduce the factum of a passage having been constructed by
cutting rocks to 'Kacha Dhank', which as per the defendants was
being used since time immemorial to have access to the suit land by
Khewatdarans of village Talangi for exercising their customary right.
A perusal of the original written statement earlier filed by the
defendants, demonstrates that they have mentioned therein that the
defendants were having customary rights over the suit land and they
have refuted the contention of the plaintiffs that it were the plaintiffs
who were only having the customary rights over the suit land and not
the defendants. In this view of the matter, this Court finds merit in
the contentions of learned Senior Counsel for the respondents that
the amendments allowed did not change the nature of the defence
.
and was only explanatory in nature. Even otherwise, the amendments
allowed do not prejudice the plaintiffs as they get opportunity to rebut
the amendments by way of replication and onus to prove the grounds
taken in the amendments which now stand incorporated in the
written statement, but natural, is upon the defendants and
incorporation of said pleas in the written statement does not means
that the said stand of the defendants has been accepted by the Court.
12. As far as the submissions made by learned counsel for
the petitioners that the impugned order suffers from non-
consideration of the issues of due diligence etc., all that this Court
can say is that the reasons which have been given by the learned
Court below, do take care of all the issues, because the findings
returned by the learned Court below while allowing the application,
inter alia, are to the effect that the amendments essential to
determine the real controversy should be allowed notwithstanding
negligence/omission on the part of a particular party. This Court
concurs with the findings so returned by the learned Court below in
the peculiar facts of this case taking into consideration the factum of
the original Civil Suit being filed before the proviso was added to
Order 6, Rule 17 of the Code of Civil Procedure.
13. This Court also concurs with the submissions made by
learned counsel for the respondents that in exercise of its powers
.
under Article 227 of the Constitution of India, ordinarily this Court
should not interfere with the orders passed by the learned Court
below unless the same suffers from perversity. In this particular case,
on the basis of material before it, the view which has been taken by
the learned Court below is one of the views which should have been
taken and this Court does not intends to interfere with the same.
14. In view of the reasoning assigned hereinabove, this
petition is dismissed by upholding the order passed by the learned
Court below.
15. Taking into consideration the fact that the Civil Suit is
quite an old one, it is ordered that an endeavour shall be made by the
learned Trial Court to decide the same within a period of six months,
by directing the parties to cooperate with the learned Court below in
the earlier adjudication of the same.
16. It is clarified that the suit shall be decided by the learned
Trial Court on the basis of the pleadings before it and any
observations made in this order should not be construed as any
adjudication viz-a-viz the rights of either of the parties because the
observations which have been made by this Court in this order are
only for the purpose of the adjudication of the present petition. It is
further clarified that the respondents herein who are not party to the
main Civil Suit, stood impleaded only for the purpose of adjudication
of this petition and the suit shall be tried intra the contesting parties
.
who were before the learned Trial Court at the time of the passing of
the impugned order.
17. The contesting parties through learned counsel are
directed to appear before the learned Court below, on 20.09.2021.
Registry of this Court is directed to forthwith returned back with the
record of the case. Pending miscellaneous applications, including for
being impleading as party respondents, stand disposed of by holding
that now no order is required to be passed on the same. Interim
order, if any, stands vacated.
August 24, 2021 (Ajay Mohan Goel)
(rishi) Judge
