Uttarakhand High Court
Containers Ltd vs Fauzdar Singh on 9 April, 2021
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
CLMA No. 8072 of 2020
In
WPMS No. 1049 of 2010
Hon'ble Sharad Kumar Sharma, J.
Mr. Jitendra Kumar, Advocate on behalf of
Mr. Devesh Upreti, Advocate for the petitioner.
Mr. Sarvesh Agarwal, Advocate for the
respondent.
The present Writ Petition was preferred by the
petitioner challenging the order dated 20th May,
2010, as it was passed by the Civil Judge (Senior
Division), Kashipur, Udham Singh Nagar, in
Original Suit No. 112 of 2008, M/s Khemka
Containers Ltd. Vs. Fauzdar Singh, and further a
prayer was also made for the production of the
original agreement dated 28th December, 2006, and
the time extension agreement dated 19th May, 2007,
before the Trial Court.
However, the controversy, which engages
consideration in the Suit, was not the subject matter,
on which, this Court, would have required to venture
into because that was an issue, which was to be
decided by way of a subject of trial, to be conducted
by the Trial Court. The only issue which was
decided by the impugned order which was under
challenge was, as to whether the institution of the
Suit was made by an imposter because it was
contended that the plaintiff, who was said to have
instituted the Suit has already been met with the said
demise, much prior to its institution. It was on this
limited issue, this matter was carried to this Court
and, ultimately, after the exchange of the pleadings
in the Writ petition, which included the exchange of
pleading by way of rejoinder affidavit too which was
filed by the defendant/petitioner, was ultimately
decided by the Coordinate Bench of this Court by the
judgment dated 10th December, 2019, with the
following observations :-
"6. In view thereof, the entire records of the case
is consigned to Civil Judge (Senior Division), Kashipur,
District Udham Singh Nagar, before whom Civil Suit
No.112 of 2008, is pending. The Civil Judge (Senior
Division) shall initiate proceedings in accordance with
law and after determining the veracity of the claim of
Fauzdar Singh, pass appropriate orders. Once a finding
is given as to the claim of Fauzdar Singh, the matter be
remitted back to this Court for further orders of this
Court in accordance with law.
7. Writ Petition stands disposed of.
8. Since the entire records are being sent to the
court below, in case the court below feels it proper, it
may supply the copy of records to either of the parties, in
accordance with law."
The directions given therein by this Court to
the Court of Civil Judge (Senior Division) Kashipur,
District Udham Singh Nagar, was to initiate the
proceedings in accordance with law for the purposes
of determining the controversial issue as to whether
the veracity of the claim of Mr. Fauzdar Singh was
rightly agitated and the matter was remitted back to
the Court, and as per the directions given therein by
the judgement 10.12.2019, it was left open for the
Court to resolve the issue, and if necessary, the Trial
Court feels it to be proper, the records may be
remitted, back.
In pursuance to the said order, the Court of
Civil Judge (Senior Division) Kashipur, District
Udham Singh Nagar, in Suit No. 112 of 2008, M/s
Khema Containers Ltd. Vs. Fauzdar Singh, had
submitted his report, being report dated 25th
September, 2020, along with an administrative
application which has been submitted by him on 25th
September, 2020, which contains within it, the report
as directed to be submitted by the judgment dated
10th December, 2019. The record, which was
received in a sealed cover, was opened in the
presence of the Counsels, for the parties.
The report of 25th September, 2020, was
perused by the Court, as well as it was also shown to
the parties to the Writ petition and the conclusion
which was derived therein by the Inquiry Officer /
Civil Judge (Senior Division) Kashipur, District
Udham Singh Nagar, for the purposes of arriving at a
conclusion, as to whether the proceedings were
drawn by an imposter or not.
This Court is of the view that though the said
report of 25th September, 2020, was as a consequence
of the compliance of the judgment dated 10th
December, 2019, but the conclusions arrived at
would always be a subject matter of consumption of
the Trial Court itself, when the Suit itself is decided
on merits and obviously so, after letting the parties
made aware of the report thus submitted by the
learned Trial Court. By way of ultimate precaution,
it is hereby directed as under :-
1. That based on the findings of the report of 25th
September, 2020, if at all, the proceedings are
taken up, the following directions are to be
adhered to :-
a) The report is to be supplied to each of the
parties to the Suit itself.
b) For the parties to the suit, it would be open for
them to file their respective objections before
the Court below, if they are dissatisfied with
the contents of the report.
c) The determination made in the report would
be one of the aspects, which is to be
considered and decided by the Trial Court by
formulation of a preliminary issue of
objection, before venturing into the Suit itself
on its own merit itself.
d) It is further made clear that while formulating
the issue on the aspect of the Suit being
instituted by an imposter or not, it would be
decided exclusively on its own merit without
being influenced by the reasonings, which has
been given in the report which has been
submitted in compliance of the order dated
10.12.2019, and it would be left open to the
respective parties to lead their evidence in
support thereto.
e) The Trial Court would proceed thereafter
strictly in accordance with law.
The Bench Secretary is directed to re-seal the
report, and remit the records of the Trial Court to the
Court of Civil Judge (Senior Division), Kashipur,
District Udham Singh Nagar for adjudication of the
Suit No. 112 of 2008, M/s Khemka Containers Ltd.
Vs. Fauzdar Singh, in accordance with law, on its
merits.
Application accordingly stands disposed of.
(Sharad Kumar Sharma, J.)
Dated 09.04.2021
Shiv
