Unknown vs Nagar Panchayat Devprayag And Others on 16 December, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

                                                      2025:UHC:11225



 HIGH COURT OF UTTARAKHAND AT NAINITAL
               Second Appeal No. 90 of 2016
                     16th December, 2025


Swami Omkarananda Dharma Samsthan Through Its
President Swami Vishveshwarananda
                                         --Appellant
                        Versus
Nagar Panchayat Devprayag and others
                                      --Respondents
Present:-
Mr. Narendra Bali, learned counsel for the appellant.
Mr. Davesh Bishnoi, learned counsel for the respondent no. 1,


Hon'ble Rakesh Thapliyal, J.

The instant second appeal has been preferred by the appellant against the judgment and decree dated 20.11.2001, passed by the learned Civil Judge (Sr. Div.) Pauri Garhwal, in O.S. No. 01 of 2001, Swami Omkaranand vs. Nagar Panchayat, Devprayag and others, whereby the suit filed by the plaintiff/appellant was dismissed. Against judgment and decree, passed by the learned Civil Judge (Sr. Div.), Civil Appeal No. 36 of 2013 was filed, however, the same was also dismissed on 20.11.2001 and the same is also being challenged in the instant second appeal.

2. The instant second appeal was admitted on 13.06.2016 on the following substantial question of law:-

(i) Whether an advocate engaged for representing the plaintiff without there being any power of attorney in his favour and any instruction to appeal as a witness could appeal as a witness and continue to be an advocate at the same time and

2025:UHC:11225 could depose against his own client?

(ii) Whether the decree passed by the learned appellant court vitiates for not recording any finding on the specific grounds raised by the appellant with regard to the fraud being played by the counsel before the trial court and with regard to the admissibility of the statement of the advocate as a witness?

3. As per the order sheet, the service is affected upon all the respondents but no one turned up except respondent no. 1.

4. To examine the substantial question of law, as framed, the counsel who came in the witness box before the trial court was also impleaded as party- respondent.

5. After gone through with the substantial question of law, as framed by this Court, this Court is of the view that substantial question of law no. 1 is sufficient to decide the instant second appeal without gone through with the second substantial question of law.

6. The appellant herein is the plaintiff preferred a suit for seeking permanent injunction bearing O.S. No. 01 of 2001. In the said suit Mr. K.P. Dangwal was engaged as a lawyer to represent the plaintiff but surprisingly the said counsel came in the witness box and examined as P.W.1, and, based on his statement, the suit was dismissed. The statement of Mr. K.P. Dangwal, Advocate is enclosed at page 58, who was examined as P.W.1 and what he has stated on oath is also being

2025:UHC:11225 reproduced herein as under:-

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lqudj rLnhd fd;k mijksDr dFku esjs cksyus ij jhMj }kjk fy[kk x;kA

7. After examining the counsel, as PW1, issue no. 1 was dealt with and the suit was dismissed. Being aggrieved with the trial court order dated 20.11.2001, Civil Appeal No. 36 of 2013 was preferred but the First Appellate Court also dismissed the appeal.

8. Mr. Narendra Bali, learned counsel for the appellant submits that the counsel who was authorized to represent the case before the trial court has no authority to come in a witness box as PW1 and the Trust never passed any such resolution to permit his counsel to come in witness box as PW1. He submits

2025:UHC:11225 that the counsel of the Trust without taking any written concurrence came in a witness box which is wholly unwarranted. Apart from this, he submits that once a lawyer is engaged as an Advocate to represent the case then he can only represent and argue the case. He submits that conduct of the counsel is in fact is a profession misconduct and the trial court committed manifest illegality while dismissing the suit solely based upon the statement of his lawyer who was examined as P.W. 1. He submits that the counsel who was engaged by the appellant to represent his case before the trial court appears to be hand in gloves with the defendants which is evident from his statement.

9. The counsel for Nagar Panchayat Mr. Bishnoi, who appears through V.C. have not disputed this fact that on the basis of the statement of counsel, who was examined as PW1, the suit was dismissed.

10. Mr. Bali submits that First Appellate court also committed manifest illegality while dismissing the appeal.

11. I have gone through with the judgment passed by the trial court as well as the First Appellate Court and admittedly issue no. 1 has been dealt with by the Trial Court on the basis of the statement of the counsel of plaintiff who was examined as PW1 and undisputedly, PW1 was the counsel engaged by the plaintiff to represent his case only. Apart from this, in such an eventuality, the trial court has to apply its judicial mind while dismissing the suit and at least this aspect has to be considered whether the lawyer who was engaged to

2025:UHC:11225 argue the case can come in the witness box but it appears from the judgment passed by both the courts below that both the court have not applied their judicial mind and merely on the basis of the statement of the counsel for the plaintiff, who was examined as PW1 dismissed both the suit and the appeal. Even otherwise, neither the Trial Court nor the first Appellate Court examined the merit of the case, and based on the statement of the counsel, who was examined as PW1, the suit as well as appeal was dismissed.

12. Thus, this Court is of the view that both the courts below committed manifest illegality while dismissing the suit as well the appeal preferred by the appellant, and, as such, the substantial question of law framed at the time of admission is answered in favour of appellant by holding that the counsel who was engaged to represent the case of the plaintiff have no authority to come in the witness box as PW1.

13. Accordingly, the judgment and decree dated 20.11.2001, passed by the learned Civil Judge (Sr. Div.) Pauri Garhwal, in O.S. No. 01 of 2001 as well as the judgment and order dated 02.03.2016, passed by First Appellate Court in Civil Appeal No. 36 of 2013 are hereby set aside. Accordingly, the instant second appeal is allowed. Since, the suit has not been decided on its own merit, consequently, the matter is remanded back to the Trial Court and the trial court to proceed with the suit and decide the same on its own merit. Taking into consideration that the suit was filed in the year 2001, the Trial Court is directed to expedite the trial positively within six months from the date of

2025:UHC:11225 production of certified copy of this order.

14. Trial Court record is remitted back.

(Rakesh Thapliyal, J.) Parul