Nirmand vs Unknown
2021 Latest Caselaw 4211 HP

                               REPORTABLE/NON-REPORTABLE


          IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




                                                      .
                  ON THE 27th DAY OF AUGUST, 2021





                              BEFORE
                HON'BLE MR. JUSTICE SATYEN VAIDYA





                REGULAR SECOND APPEAL NO.622 OF 2007
    Between:-

    MS. MANI DEVI DAUGHTER OF





    SH. JANKI, RESIDENT OF
    VILLAGE JAGATKHANA, PHATI
    THACHWA, KOTHI, 1520, P.O.
    RAMPUR BUSHAHR, TEHSIL

    NIRMAND, DISTRICT KULLU,

    H.P
                                                           ...APPELLANT

    (BY  SH.  ROMESH          VERMA,
    ADVOCATE)



    AND
    1.    SH. SURESH CHAND SON OF




          SH. RATTAN DASS;

    2.    SH. PARTAP SINGH SON OF





          SH RATTAN DASS;
    3.    SH DURGA DASS SON OF SH.





          RATTAN DASS;

    ALL RESIDENT OF JAGATKHANA,
    PHATI, THACHWA, KOTHI 1520,
    P.O. RAMPUR BUSHAHR, TEHSIL
    NIRMAND DISTRICT KULLU, H.P.

    4. SH. DEV RAJ CONTRACTOR,
    RESIDENT   OF   JAGATKHANA,
    PHATI, THACHWA, KOTHI 1520,
    P.O. RAMPUR BUSHAHR, TEHSIL
    NIRMAND, DISTRICT KULLU, H.P.




                                     ::: Downloaded on - 31/01/2022 22:58:16 :::CIS
                                        2




     5.   SH. AJAY CHAUHAN, CLERK
     NATIONAL      HIGH   DIVISION,
     H.P.PWD, PAT BANGLA, RAMPUR




                                                                .
     BUSHAHR, DISTRICT SHIMLA, H.P.





     (TENANT OF SMT. MANI DEVI).
     6. SH. RANJIT DRIVER, RESIDENT





     OF      JAGATKHANA,      PHATI
     THACHWA, KOTHI 1520, P.O.
     RAMPUR      BUSHAHR,    TEHSIL
     NIRMAND DISTRICT KULLU, H.P.





     (TENANT OF SMT. MANI DEVI)                                ...RESPONDENTS
     (SH. K.D. SOOD, SR. ADVOCATE,
     WITH SH.MUKUL SOOD,
     ADVOCATE, FOR RESPNDENTS
     NO.1 TO 3)


     RESERVED ON          :19.08.2021
     DATE OF DECISION :27.08.2021
    ___________________________________________________________


              This appeal coming on for hearing this day, Hon'ble
    Mr. Justice Satyen Vaidya, delivered the following:-




                               JUDGMENT

By way of present appeal, the appellant has assailed the

judgment and decree dated 05.11.2007, passed by learned District Judge,

Kinnaur at Rampur Bushahr, H.P. in Civil Appeal No. 48 of 2005, arising

out of judgment and decree dated 30th September, 2005 passed by learned

Civil Judge (Junior Division), Anni, District Kullu in Civil Suit No.14-1

of 2004.

2. Appellant herein was plaintiff before the Trial Court and

respondents herein were defendants. The parties hereafter shall be

referred to by the same status, which they held before the learned Trial

Court.

3. Plaintiff filed the suit in respect of 2 biswas of land and

.

house constructed thereon comprised in part of Khasra No. 409/283 in

mauja /Phati Thachwa in village Jagatkhana, Tehsil Nirmand, District

Kullu, H.P. (for short "suit property"). Plaintiff claimed the suit property

as owner thereof by virtue of agreement to sell and alternatively under a

gift executed by one Sh. Parmi, who was the original owner of the land

comprised in Khasra No. 409/283. She alleged that defendants No. 1 to

3 were strangers to the suit property and defendants No. 4 to 6 were her

tenants. As per plaintiff, defendants were sons of Sh. Rattan Dass, who

had lived as husband of plaintiff for considerable long period. It was

contended by plaintiff that after the death of Sh.Rattan Dass, defendants

No. 1 to 3 illegally started claiming their rights over the suit property on

the pretext that it belonged to their father. The peaceful possession of

plaintiff was alleged to be disturbed by defendants No.1 to 3. It was also

alleged that defendants No. 1 to 3 obstructed defendants No. 4 to 6 from

paying rent to the plaintiff on the above noted averments relief in the

following terms was prayed for:-

"It is, therefore, prayed that defendant Nos.1 to 3 and their family members, agents, persons, servants or whosoever acts for and on their behalf may kindly be restrained from causing any sort of

interference directly or indirectly into the possession of the plaintiff and her tenants in the double storey house comprising two rooms and kitchen on the

.

ground floor and two rooms with separate kitchen,

latrine and bathroom on the Ist floor of the house along with vacant space in front and right side of

the house and they be also restrained from collecting rent from defendants Nos. 4 to 6 and further defendant Nos. 4 to 6 may kindly be

restrained to make any kind of payment of rent to defendant Nos. 1 to 3 and further defendant Nos. 1 to 6 may kindly be restrained from causing any sort

of nuisance, acts and deeds in peaceful enjoyment of

the property situated over Khasra No. 409/283 in mouza Tachwa by the plaintiff. Any other relief the

Court deems just and proper may kindly be passed in favour of the plaintiff and against the defendants

in the interest of justice."

4. Suit was contested by all the defendants. Defendants No. 1 to 3

denied the claim of plaintiff on the ground that their father late Sh.Rattan

Dass had purchased the land measuring two biswas in Khasra No. 409/283

from Sh. Ratti Ram, who was son of Sh. Parmi. According to defendants

No.1 to 3, the house was constructed by their father and plaintiff was one of

his tenants. They specifically denied any relationship between their father

and plaintiff.

5. Defendants No. 4 to 6 acknowledged that suit property

belonged to Sh. Rattan Dass and they were inducted tenants by him.

Defendants No. 4 to 6 maintained that they had been paying rent earlier to

.

Sh. Rattan Dass and after his death to defendants No. 1 to 3.

6. The learned Trial Court on the basis of the pleadings of the

parties had framed followings issues:-

1. Whether the plaintiff is entitled for the relief of

permanent prohibitory injunction, as prayed? OPP.

2. Whether the plaintiff has no cause of action to file the present suit against the defendants? OPD. r3. Whether the suit is not maintainable in the present

form? OPD.

4. Whether the plaintiff has no locus standi to file this suit against the defendants? OPD.

5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.

6. Whether the suit is bad for non-joinder of necessary parties? OPD.

7. Relief.

7. Parties to the suit availed opportunities to lead evidence.

Oral as well as documentary evidence was produced on record by both the

parties. The learned Trial Court answered issues No.1 and 5 in negative,

issues No.2 to 4 in affirmative and issue No.6 as not pressed. The suit of

the plaintiff was accordingly dismissed vide judgment and decree dated

30.09.2005 passed by learned Trial Court.

8. Aggrieved against the judgment and decree dated

30.09.2005, passed by learned Trial Court, plaintiff filed appeal under

Section 96 of the Code of Civil Procedure before learned District Judge,

.

Kinnaur at Rampur Bushahr, which came to be registered as Civil Appeal

No. 48 of 2005. Learned District Judge, Kinnaur at Rampur Bushahr

dismissed the above noted appeal vide judgment and decree dated 5.11.2007

and thereby affirmed the judgment and decree passed by learned Trial

Court.

9. The plaintiff has approached this Court by way of Regular

Second Appeal under Section 100 of Code of Civil Procedure against above

noted judgment and decree dated 05.11.2007, passed by learned District

Judge, Kinnaur at Rampur Bushahr in Civil Appeal No. 48/2005.

10. On 29.12.2007, the instant appeal was admitted for hearing on

following substantial questions of law:-

1. Whether the application under Order 41 Rule 27 C.P.C.

having been filed by appellant has not been considered and decided by the learned District Judge, therefore, the

jurisdiction has not been exercised properly and findings are liable to be set-aside.

2. Whether the application under Order 18 Rule 17 CPC as filed by the appellant for recall of PW-7 has wrongly been rejected and thus the jurisdiction has not been exercised in accordance with law.

3. Whether the appellant having received the amount of compensation due to damage to her house in the suit by the

Tehsildar, Nirmand in support of which certificates Ex.PW-2/A and Ex. PW-2/B have been brought on record, but effect thereof on the claim of the appellant has not been considered by both the courts below and similarly the

.

factum of electricity connections in the name of appellant as per Ex.PW-7/A, Mark A and Mark B, the suit was

required to be decreed.

4. Whether the agreement for sale Ex. PW-3/A and writing of gift Ex. PW-3/B having been proved on record, therefore,

the same could not be excluded from consideration and in any case for decree of injunction, these documents could be considered.

11. Learned counsel for appellant at the time of hearing of the

appeal, in the first instance, addressed arguments on substantial question

No.1. He drew the attention of the Court towards the relevant portion of the

record of learned District Judge Kinnuar at Rampur in Civil Appeal No. 48

of 2005.

12. Perusal of "zimni" order dated 31.05.2007 revealed that the

plaintiff on the said date had filed an application under Order 41 Rule 27

read with Section 151 of the Code of Civil Procedure for adducing

additional evidence. On 20.06.2007, reply on behalf of the respondents was

filed to the said application and the main appeal was ordered to be listed for

arguments along with application under Order 41 Rule 27 of Code of Civil

Procedure. Thereafter, the appeal came to be adjourned on various

occasions due to one or other reason. Finally, the appeal came to be decided

on 05.11.2007. The record further reveals that the application under Order

41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by

plaintiff before lower Appellate Court remained pending throughout and

.

was not decided either separately or along with the appeal.

13. There is no absolute right granted by Code of Civil Procedure

to adduce additional evidence at the appellate stage. Nonetheless, the Court

hearing appeal has power to allow a party to adduce additional evidence

subject, however, to the interdict provided in Order 41 Rule 27 of the Code

of Civil Procedure. The allowance of the prayer to adduce additional

evidence, in the given circumstances of the case, may have the effect of

changing the outcome of the case.

14. Undisputedly, plaintiff had right to invite a decision, on her

prayer to adduce additional evidence, from Lower Appellate Court. The

absence of adjudication on application under Order 41 Rule 27 of the Code

of Civil Procedure amounts to refusal of exercise of jurisdiction vested in

Lower Appellate Court, which has potential to cause prejudice to the

plaintiff.

15. In Jatinder Singh & Another vs Mehar Singh & others, AIR

2009 Supreme Court 354, Hon'ble Apex Court has held as under:-

"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view,

when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That

.

being the admitted position, we have no other alternative but to set aside the judgment of High Court

and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with

law."

16. In the light of above discussion, impugned judgment

and decree passed by learned District Judge, Kinnaur, dated 05.11.2007, in

Civil Appeal No. 48 of 2005 in case titled Smt.Mani Devi vs. Sh. Suresh

Chand & Others is set aside. The appeal, thus is allowed to the extent

indicated above and the matter is remanded to learned District Judge,

Kinnaur at Rampur Bushahr, H.P. for decision afresh in the appeal

alongwith application under Order 41 Rule 27 read with Section 151 of the

Code of Civil Procedure filed on behalf of plaintiff.

17. No order as to costs.

(Satyen Vaidya) Judge August 27th , 2021 (ravinder)