Himachal Pradesh High Court
RSA/405/2014 on 29 December 2022
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 405 of 2014 Decided on: December 29, 2022 ________________________________________________________ Mast Ram
……...Appellant
Versus Nasib Singh
…Respondent ________________________________________________________
Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting1? Yes. ________________________________________________________ For the appellant: Mr. Pawan Gautam, Advocate.
For the respondent: Mr. R.K. Sharma, Senior Advocate with Mr. Arun Kumar, Advocate.
________________________________________________________ Sandeep Sharma, J.
Instant Regular Second Appeal filed under S.100 CPC, lays challenge to judgment and decree dated 29.3.2014 passed by the learned Additional District Judge-II Kangra at Dharamshala, District Kangra, Circuit Court at Jawali in Civil Appeal No. 66-J/13/12, affirming judgment and decree dated 30.11.2011 passed by learned Civil Judge (Junior Division) Jawali, District Kangra, in Civil Suit No. 274 of 2004, whereby suit for vacant possession filed by respondent/plaintiff came to be decreed
2. On 23.12.2014, aforesaid appeal was admitted on following substantial question of law “Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the findings recorded by both the learned Whether reporters of the Local papers are allowed to see the judgment? .
courts below are erroneous and as such, the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable?”
3. Today, when the appeal was taken up for hearing, learned counsel for the appellant/defendant invited attention of this court to order dated 25.3.2014, passed by learned first appellate court, whereby on one hand, court below having taken note of application filed by Mr.L.M. Sharma, learned counsel for the respondent/plaintiff, adjourned the matter to 29.3.2014 but, on the other hand, after having heard arguments of the counsel representing parties, fixed the matter for passing of order on 29.3.2014. Subsequently on 29.3.2014, learned court below, vide separate judgment and decree, dismissed the appeal having been preferred by the defendant.
4. Mr. Pawan Gautam, Advocate appearing for defendant, while inviting attention of this court to application filed by Mr.L.M. Sharma, learned counsel for the respondent/plaintiff (available at page 49 of record of first appellate court) argued that on 25.3.2014, matter was requested to be adjourned by learned counsel for the respondent. He submitted that though Mr.R.K. Sharma Advocate was not a counsel for the defendant but yet, learned court below, after having taken note of no objection given by said lawyer, adjourned the matter to 29.3.2014, but while doing so, learned court below, without hearing arguments, proceeded to record ‘arguments heard’ and posted the matter for 29.3.2014. He submitted that even on 29.3.2014, Mr. M.G. Thakur, advocate, who had filed power of attorney on behalf of the defendant was never present, because he was not aware of posting of matter on 29.3.2014, but learned court below, after having recorded presence of Mr.R.K.. Sharma, Advocate, who had not filed power of attorney on behalf of the defendant, dismissed the appeal filed by the defendant vide separate judgment.
5. Having heard learned counsel for the parties and perused material available on record this court finds that, on 25.3.2014, Mr.L.M. Sharma, Advocate representing plaintiff filed an application seeking adjournment. In the application, no objection was recorded by Mr. R.K. Sharma, Advocate. There is nothing on record suggestive of the fact that said Mr.R.K. Sharma, Advocate was a lawyer appointed by defendant, rather, material available on record clearly reveals that Mr. M.G.Thakur, Advocate, had been representing defendant in the appeal No. 66-J/13/12 having been filed by defendant against the judgment and decree 30.11.2011 passed by learned Civil Judge, Jawali, in Civil Suit No. 274 of 2004.
6. Interestingly, on 25.3.2014, learned court below on the one hand, after recording request of Mr.L.M. Sharma, Advocate for adjournment., adjourned the matter for 29.3.2014, but on the other hand, categorically recorded in the order that, “arguments heard. Be put up for orders on 29.3.2014”. On 29.3.2014, learned court below, without hearing arguments, proceeded to dismiss the appeal filed by defendant vide separate judgment and decree.
7. Since the arguments in case were never heard, there was no occasion for learned court below to post the matter for orders on 29.3.2014. Even careful perusal of judgment and decree dated 29.3.2014 nowhere reveals that on that day, arguments were heard afresh and learned court below, after hearing learned counsel for the parties, reserved the judgment and decree or dismissed the appeal vide separate judgment and decree.
8. Though, as has been taken note herein above, material available on record clearly reveals that Mr. M.G. Thakur, Advocate had filed power of attorney on behalf of defendant but yet learned court below after having taken note of no objection given by Mr.R.K. Sharma, Advocate proceeded to adjourn the matter to 29.3.2014. It is not understood when on 25.3.2014, learned counsel for the respondent/plaintiff, Mr. L.M. Sharma, Advocate,was not available and had sought adjournment, by way of written application, how learned court below could hear the appeal on 25.3.2014. Though on that day, learned counsel for the appellant/defendant was not available, as is evident from order dated 25.3.2014, but even on that day, learned counsel for the respondent/plaintiff, Mr.L.M. Sharma, Advocate, was unavailable and had sought adjournment, as such, there was no occasion for learned court below to hear arguments on that day, meaning thereby learned court below, without hearing the arguments on 25.3.2014, wrongly recorded in the order dated 25.3.2014, “arguments heard. Be put up for orders on 29.3.2014”. Even perusal of order dated 29.3.2014, nowhere indicates that on that day, arguments were heard.
9. In view of the above, there appears to be merit in submission of learned counsel for the defendant that no opportunity of hearing was ever afforded to the defendant by learned court below, before passing judgment and decree laid challenge in the instant proceedings as such, same deserves to be set aside, without deciding the appeal on the substantial question of law.
10. In view of above, present appeal is allowed and judgment and decree dated 29.3.2014 passed learned Additional District Judge-II Kangra at Dharamshala, District Kangra, Circuit Court at Jawali in Civil Appeal No. 66-J/13/12 is set aside, with a direction to learned court below to fix the matter for arguments afresh, enabling learned counsel for the parties to make their submissions and thereafter fresh judgment and decree be passed.
11. Learned counsel for the parties undertake to cause presence of their clients in person or through their counsel, before learned court below on 17.1.2023, enabling it to hear the arguments afresh.
12. Since matter is hanging fire for more than one decade, this court hopes and trusts that learned first appellate court, would pass final judgment and decree, after hearing parties, expeditiously, preferably within a period of four weeks.
13. The appeal stands disposed of in the afore terms, alongwith all pending applications. Interim directions, if any stand vacated. Record of learned court below be sent back forthwith.
(Sandeep Sharma) Judge December 29, 2022 (Vikrant)