CMPMO/719/2019 of SAT PAL Vs BABA DHARAM SHAH on 31 December 2019

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

CMPMO No. 719 of 2019.

Date of Decision: 31st December, 2019.

Sat Pal…..Petitioner/defendant.

Versus

Baba Dharam Shah ....Respondent/plaintiff.

Coram

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Petitioner: Mr. B.S. Chuhan, Senior Advocatewith Mr. Munish Dhatwalia,Advocate.

For the Respondent: Mr. R.P. Singh, Advocate.

Sureshwar Thakur, Judge (Oral).

The plaintiff/respondent herein, instituted, a,suit, for, declaration, against, the defendant/petitionerherein, seeking, therethrough, the, setting aside, and,quashing, of, the, apposite testamentary disposition,made, on, 4.5.2010, by, the deceased testator concerned,vis-a-vis, the petitioner herein/defendant, and, qua the suitproperty. In, the, initially instituted plaint, an, avermentbecome cast, that, the, petitioner herein, is, not holding, any capacity/status, as, an, agriculturist, and, hence, his,being barred to become, a valid legatee, of, the, deceasedtestator concerned. However, subsequently, through, anapplication, cast, under, Order 6, Rule 17, of, the, CPC, theplaintiff strived, to, seek leave, of, the, court, to, make, a,challenge, vis-a-vis, the, mutation, as, became attested,hence, in, compliance, with, the, verdict, pronounced, by,this Court, in, CWP No.3572, of, 2014, the, relevantparagraphs whereof, stand extracted hereinafter:- “3. Accordingly, impugned annexure P-9 dated 23.4.2014 is quashed and set aside. Respondentare directed to attest the mutation within a periodof eight weeks from today by treating the petitionerto be an agriculturist.

4. However, before parting with the judgment, thisCourt deems it fit and proper to direct the StateGovernment to make suitable amendments toSection 118 of the HP Tenancy and Land ReformsAct, 1972, read with HP Tenancy and Land ReformsRules, 1975 in order to facilitate to purchase anyland (agricultural and non agricultural) in the Stateof Himachal Pradesh by the non agriculturistHimachalis residing in the State for decadestogether prior to the date of commencement of theHP Tenancy and Land Reforms Act, 1972, within aperiod of ninety days from today.

5. In vive of the above, the present petition isdisposed of. Pending applications, if any, are alsodisposed of.”

The afore leave became accorded to the plaintiff, and, thedefendant becomes aggrieved therefrom, and, hence, has,constituted, thereagainst, the, extant petition, before, thisCourt.

2. Even though, at, first glance, the proposedamendment appears to be simplistic, and, innocuous, yetwhen, viewed, in, the, light, of, the, afore verdict,becoming pronounced, by, this Court in CWP No.3572 of2014, verdict whereof, also, became affirmed, by, theHon'ble Apex Court, through, a, verdict rendered, upon,Civil Appeal No. 1654 of 2017, (a) inasmuch, as, a,reading, of, the, opening paragraph, of, the, aforeaffirming pronouncement, makes, clear echoings, vis-a-vis,the, apposite challenge, as, became, cast, by, the,aggrieved State, of, H.P., vis-a-vis, the, aforepronouncement, made, by, this Court, in, CWP No. 3572,of, 2014, rather, becoming confined, to, the, issuance, of,a, mandamus, by, the, writ court, and, rather no challenge,becoming cast, vis-a-vis, the, setting aside, of, the,impugned apposite Annexure P-9, by, the, writ court, (b)thereupon, the, inference marshable, therefrom, is, qua, the, State of H.P., acquiescing, vis-a-vis, the validity, of,the afore, unchallenged portion, of, the verdict supra, and,it also becoming concomitantly estopped, to, deny, to,the, defendant, the, relief pronounced, hence,therethrough, qua him.

3. Consequently, since, the, questioned mutation

became attested, in, pursuance, to, the afore conclusive,and, binding verdict, recorded, in, CWP No.3572, of, 2014,(i) thereupon, the affirmative pronouncement, as, made,by, the, learned trial Court, upon, an, application, casttherebefore, by, the, plaintiff/respondent herein, under,the, provisions, of, Order 6, Rule 17, of, the, CPC, was,grossly impermissible, (a) thereupon, the learned trialCourt, has permitted, an, untenable amendment, despite,hence, its, tacitly, striving, to, question, the, aforeconclusive, and, binding verdict, and, has, also, untenablypermitted, to, thereafter strike issues thereon, and, alsopermit adduction, of, evidence(s) thereon.

4. For the foregoing reasons, the, extant petition,is, allowed, and, the, order rendered, by, the, learned trialCourt, upon, Application No.2350 of 2019 (in Civil SuitNo.12/2014), on 30.10.2019, is, quashed, and, set aside.Accordingly, application No.2350, of, 2019, stands, dismissed. The parties, are, directed, to, appear, before,the, learned trial Court, on, 25[th] February, 2020. Allpending applications also stand disposed of. However, it ismade clear, that, the observations, made, hereinabove,shall have no bearings on the merit of the case. Records, ifany, received, be sent back forthwith.

31[st] December, 2019 (jai)

(Sureshwar Thakur) Judge.