Baijnath Singh vs Devendra Kunwar
2023 Latest Caselaw 3131 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(C) No. 3105 of 2018
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1. Baijnath Singh

2. Ghanshyam Singh .... .... Plaintiffs/Petitioners Versus

1. Devendra Kunwar

2. Indu Kunwar

3. Ragvendra Kunwar

4. Sujit Kunwar

5. Ranjeet Kunwar

6. Kundan Kunwar

7. Pankaj Kunwar

8. Basistha Kumar Singh

9. Gagan Kumar Singh

10. Tarni Singh

11. Madan Singh

12. Arjun Singh .... .... .... Defendants/Respondents

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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       For the Plaintiffs/Petitioners      : Mr. Jay Prakash Jha, Sr. Advocate
                                           : Mr. Shree Prakash Jha, Advocate
       For the Defendants/Respondents
       Nos. 8 to 12                        : Mr. Indu Shekhar, Advocate
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  Order No. 07 Dated- 24.08.2023
                                 Order

"Recording of reasons in support of the conclusion arrived at in a judgment or order by the Courts in our judicial system has been recognized since the very inception of the system. Right to know the reasons for the decisions made by the Judges is an indispensible right of a litigant. Even a brief recording a reasoned opinion justifying the decision made would suffice to withstand the test of a reasoned order or a judgment. A non-speaking, unreasoned or cryptic order passed or judgment delivered without taking into account the relevant facts, evidence available and the law attracted thereto has always been looked at negatively and judicially de recognized by the courts. Mere use of the words or the language of a provision in an order or judgment without any mention of the relevant facts and the evidence available thereon has always been treated by the Superior Courts as an order incapable of withstanding the test of an order passed judicially. Ours is a judicial system inherited from the British legacy wherein objectivity in judgments and orders over the subjectivity has always been given precedence. It has been judicially recognized perception in our system that the subjectivity preferred by the Judge in place of objectivity in a

judgment or order destroys the quality of the judgment or order and an unreasoned order does not subserve the doctrine of fair play as has been declared by the Hon'ble Apex Court in the matter of Andhara Bank vs. Official Liquidator, 2005 (3) SCJ 762. For a qualitative decision arrived at judicially by the court, it is immaterial in how many pages a judgment or order has been written by the Judge as has been declared by the Apex Court in the matter of Union of India vs. ESSEL Mining and Industries Limited (2005) 6 SCC 675.

Heard learned counsel for the parties.

2. The present petition has been filed under Article 227 for quashing the order dated 27.03.2018 passed by the learned Civil Judge (Senior Division - I), Dumka whereby and whereunder, the application of Plaintiffs/Petitioners filed under Order VI Rule 17 CPC has been rejected.

3. The Title Suit No. 42 of 2015 was instituted by Plaintiffs/Petitioners on 16.10.2015 stating inter alia that Plaintiffs/Petitioners are heirs of Jhakhori Singh Pradhan with regard to the non-transferable land under Gantzer settlement Jamabandi No. 10, Mouza - Farasimal No. 46 total area 19 acres, 7 decimals as described in Schedule- A to the plaint is within the possession of the Plaintiffs/Petitioners. Plaintiffs/Petitioners have instituted suit claiming the reliefs for a decree to declare exclusive owner having right, title and interest over the suit Schedule 'A' property along with defendant no. 2. Further declaration that defendant first party have got no right over the suit land and also for confirmation of their possession of the Plaintiffs/Petitioners over the suit property and in case they are found dispossessed during the pendency of the suit, the delivery of possession through process of the court. Further relief is that entry of the suit land in favour of the defendants in the present survey parcha, Jamabandi No. 31 of aforesaid mouza be declared illegal and void along with the cost of suit.

4. After service of summons, defendants first party and second party filed their respective separate written statements, which necessitated the filing of present application for amendment in the plaint. Accordingly, Plaintiffs/Petitioners have filed application for amendment of plaint that the Plaintiffs/Petitioners came to know for

the first time from the written statement of the defendants that "they have got settlement of the suit property through Pradhani Eviction Case No. 63/1931-32/Revenue Miscellaneous Case No. 132/1939-40 by which 54 bigha 3 khatha 8 dhur land has been settled with the ancestors of the defendant nos. 1 to 7 Darbari Kunwar and delivery of possession was given to him after paying Rs. 137/6/8. It is further alleged that the suit land was non-transferable and ancestral Jamabandi land of Plaintiffs/Petitioners which cannot be transferred by any means and the alleged transfer of the land is quite wrong, illegal and against the land law of District - Dumka. Hence, there is need of amendment in the plaint for just decision of the case.

Proposed Amendment

5. After para 23 of the plaint a new para 23(A) may be added as follows:

That the plaintiffs have come to know first time through the written statement of the defendant first party that they have got suit property land through Eviction Case No. 63/1931-33/Revenue Miscellaneous Case No. 132/1939-40 order passed by SDO, Dumka.

It may be submitted here that the said order is not tenable at all as per the facts and law and the defendants are trying wrongly and illegally to grab the non-transferable J.B. land. It is further submitted here that no land has been transferred till today and the plaintiffs and the defendants 2nd party have inherited and succeeded the entire land of J.B. No. 10 of the aforesaid Mauza - Farasimal who are the actual owners of the suit land and right, title, interest has already been perfected over the suit property of the plaintiffs and the defendants 2nd party and are in actual physical possession over the land in question since long till today. It may be inserted in in para 33 of the plaint adding prayer for following reliefs 1/1A that the order passed against the ancestor of the plaintiffs and defendant second party Jhakhori Singh in Eviction Case No. 63/1931-33/ Revenue Miscellaneous Case No. 132/1939-40 are wrong and illegal and not enforceable in law and beyond jurisdiction of the Court.

6. The defendant nos. 1 to 7 in their rejoinder filed on 14.06.2017 have challenged the maintainability of the amended application the plaintiffs standing that by way of amendment

plaintiff's want to change their pleading which will change the nature of their case. The plaintiffs have wrongly mentioned that they have come to know for the first time about the settlement of suit land in favour of the ancestor/defendants and also order passed in eviction case in 1931-32 and Basgarhi made in favour of defendants on 06.02.1932. It is further alleged that current settlement and final purcha for the lands under suit has been finally published in the name of Hari Prasad Kunwar and Dhirth Nandan Kunwar which has also been notified in the Gazette, so the plaintiffs cannot take plea that they have no knowledge about the said order. Amendment petition is rightly liable to be rejected. The plaintiffs have also lodged lost a proceeding under Section 144 CrPC before the SDM, Dumka vide order dated 26.09.2008. The defendant nos. 1 to 7 are in actual physical possession over the land in question since 1932 within the knowledge of the plaintiffs. Hence, this amendment petition is fit to be rejected.

7. while deciding the above application under Order VI Rule 17 CPC learned trail court without discussing the factual and legal aspects raised by both the parties in their application and rejoinder respectively has passed the following order:-

"The plaintiff has filed an amendment petition dated 30.05.2017, seeking amendment, which has been of the Written Statement. The amendment which has sought by the plaintiff is badly hit by limitation. The defendants have filed a rejoinder to the same.

When the amendments have seen, the application of objection raised by the defendant in the W.S and the plaintiff want to change their plaint in view of the written statement.

Heard, argument of both the sides.

The amendment which is sought by the plaintiff will change the nature of the suit and even otherwise the orders which the defendant talks of it nearly 83 years old and the Gazette Publication is of 25th July 1998 after the current settlement parcha and the defendant No. 1 to 7 are in actual physical possession since 1932. Hence, the amendment which is sought by the plaintiff is badly hit by limitation, even otherwise the amendment shall change the nature of the suit. The suit has returned back from the mediation center in November, 2016 itself. The parties were directed to file proposed issue, instead of filing proposed issue, the plaintiffs are delaying the proceeding of the trial.

In view of the delay in the case the issues are also framed along with this order, before this the amendment petition of the plaintiff is hereby rejected."

8. From bare perusal of the aforesaid order, it appears that it is cryptic, non-speaking and devoid of any reason and nothing could be intelligible as to what was the proposed amendment, on which ground it was being opposed, how it was time barred or tending to change the very nature of the suit.

Needless to say that every orders passed by the courts affecting the rights of parties must be based on sound reasons, like the orders passed in criminal revisions, criminal appeals, bail orders, summoning/dismissal order in complaint cases, order disposing of application under Section 156(3) CrPC, order condoning delay/limitation and Rejection of plaint etc.

9. In view of aforesaid discussion and reasons, the impugned order is, hereby, set aside and the matter is remitted back to the court below with a direction to re-hear the parties on application under Order 6 Rule 17 CPC filed by plaintiffs and pass a fresh order in accordance with law preferably within three months from the date of receipt/production of a copy of this order.

10. In the light of above observation, this petition stands disposed of.

11. Registry is directed to circulate copy of this order to all Judgeship of the State for information and needful.

(Pradeep Kumar Srivastava, J.) Umesh/-

A.F.R.