IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO. 137 of 2011 Date of decision: 1.6.2011 Sita Ram and others ….Petitioners. Versus Daulat Ram and others ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes . For the petitioners: Mr.Neeraj Gupta, Advocate For the respondent: Mr. Y.P. Sood, Advocate. _________________________________________________ Deepak Gupta, J. (oral) 1. This case reflects a shocking state of affair where a Judicial Officer of the rank of District Judge has virtually dis-regarded and set at naught the judgment delivered by Hon’ble Chief Justice of this Court as well as a judgment of the Hon’ble Apex Court. 2. Briefly stated the facts of the case are that two suits were filed. Civil Suit No.5/1 of 1983 was filed on 6.1.1983 by Het Ram only. In this suit, he claimed the relief of permanent injunction restraining the defendants Daulat Ram and Hira Singh from interfering in the suit land. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 According to him, Chet Ram defendant No.3 was recorded as non-occupancy tenant over the suit land in which Smt.Mathi widow of Nirma had half share and Keshav Ram and Daulat Ram had 1/4th share each. It is alleged that Chet Ram acquired proprietary rights of Keshav Ram and Daulat Ram and thereafter Chet Ram delivered possession of the suit land to the plaintiff Het Ram. This suit was contested by the defendants. 3. Second suit being Civil Suit No.33/1 of 1985 was filed by Het Ram and Pamplu in which it was claimed that Het Ram is the owner in possession of the suit land. A challenge was laid to the sale deed dated 9.11.1984 executed by Chet Ram qua his share in favour of Daulat Ram. The plaintiff claimed to be owner in possession of the suit land. 4. The defendants contested the suit basically on the plea that earlier one Balak Ram was in possession of the suit land and he became owner of the same by way of adverse possession. Balak Ram was succeeded by his widow Smt.Kokila who executed a Will in favour of the defendants. Therefore, the defendants claimed to be owners in possession of the suit land. 3 5. Both the suits were dismissed by the learned trial Court on 30th July, 1987. However, sale in favour of Daulat Ram was held to be illegal. Thereafter, an appeal was filed by Daulat Ram one of the defendants and one appeal was filed by Het Ram. The appeal filed by Daulat Ram was allowed and the appeal filed by the plaintiff was rejected. The plaintiff Het Ram filed two second appeals being RSA Nos.98 and 99 of 1993. Both these appeals were disposed of by a common judgment delivered by the then Chief Justice on June 25, 1999. Though the appeals on merits were dismissed, the Court came to the conclusion that it was not clearly proved on record as to who was in actual physical possession of the suit property. The Court was also of the view that the question of possession had been decided in a perfunctory manner and therefore there was need to effectively decide the same. Therefore, the appeals were remanded to the learned lower Appellate Court in the following terms: “…In my view the interest of justice would require that the matter be relegated to the learned first appellate Judge to consider the question of actual and physical possession asserted by either of the parties and for that purpose the appeals filed by the 4 plaintiffs in C.A. Nos.118-S/13 of 1989 and 123-S/13 of 1989/1987 shall stand remitted to the first appellate Court for the only limited purpose of considering properly and effectively the question relating to the possession of the parties and pass appropriate orders as the first appellate court deem fit on such fresh consideration of the said issues. If the first appellate Court so desires, it is open to the said Court to take any further evidence in the mater in order to effectively decide the same. The relief claimed by way of injunction shall abide by the decision to be rendered by the first appellate Court.” (emphasis supplied) 6. It is apparent that the remand was only to a very limited extent and only with a view to find out as to which party was in possession of the suit land. The then Hon’ble the Chief Justice also permitted the first Appellate Court to take further evidence in the matter in order to effectively decide the issue. 7. In terms of the aforesaid orders the matter was taken up by the learned District Judge, Shimla to give a finding with regard to the issue of possession. In the meantime, defendant Daulat Ram filed two SLPs before the Apex Court which were allowed and Civil Appeals Nos.6295 and 6296 of 2000 were duly registered. In these 5 Special Leave petitions the following order was passed: “Issue notice. The High Court has directed to the first appellate Court to give the findings as to physical possession. The first appellate court will conduct an enquiry as to physical possession as directed by the High Court and submit the report to this Court.” 8. In view of this order, it was apparent that the District Judge was permitted to continue with the inquiry as to physical possession. The then District Judge in compliance to the orders of this Court and the orders of the Apex Court recorded the evidence and gave his findings on the issue of possession and submitted the same to the Hon’ble Supreme Court in compliance to the orders quoted hereinabove. This report/ judgment was delivered on 17.4.2000. 9. The Civil Appeals before the Apex Court came up for hearing on July 14, 2009. The Apex Court upheld the directions of this Court regarding actual and physical possession and clearly held that they warrant no interference, meaning thereby that the appeals on merits were to be dismissed. At that stage, counsel for the appellants (defendants herein) made a prayer that since the matter has already been remanded 6 to the first Appellate Court the first Appellate Court may also be directed to consider the second substantial question of law formulated by the High Court which reads as follows: “Whether the amendment of Himachal Pradesh Tenancy and Land Reforms Act, 1972, by Act No.15 of 1976, for the purpose of vestment of right of ownership in tenants by virtue of Section 104 (2) cannot be read retrospectively and can only be read as prospectively.” 10. Thereafter, the Apex Court passed the following order: “In the facts and circumstances of the case, we are of the opinion that the prayer of the appellant is reasonable and consequently, the first appellate court is also directed to determine the said substantial question of law formulated by the High Court. Learned counsel for the parties further submit that for deciding this issue no evidence is required because it is a pure question of law. In this view of the matter, we direct that this issue should also be determined by the first appellate court after hearing learned counsel for the parties without being influenced by any observation made by the High Court. This case is pending for quite some time, therefore, we request the first appellate court to decide the case as 7 expeditiously as possible and in any event within six months from the date of communication of this order.” 11. A perusal of the order of the Apex Court shows that possibly the report of the District Judge was not brought to the notice of the Apex Court at the time of final disposal of the appeals. Be that as it may, from the order passed by the Apex Court it is clearly made out that counsel for the parties had submitted that for deciding the issue as to whether the amendment to the H.P. Tenancy and Land Reforms Act was retrospective or not no evidence was required to be led since it was a pure question of law. The Apex Court, therefore, directed that the first Appellate Court after hearing learned counsel for the parties would decide this question without being influenced by any observations made by this Court in Regular Second Appeals. The matter therefore went back to the learned District Judge, Shimla. 12. It appears that the learned District Judge, Shimla on 11th March, 2001 directed that the parties may, if they so desire, lead evidence. It would be pertinent to mention that none of the parties filed any application for leading evidence. Since such directions were given, the plaintiff filed a detailed application bringing to the notice 8 of the learned District Judge the various orders passed by this Court and the Apex Court and prayed that in view of these orders further evidence should not be recorded and the appeal be heard on merits without recording any further evidence. 13. Reply to the application was filed and the learned District Judge, disposed of this application in a very cryptic manner vide his order dated 29.3.2011 which reads as follows: “I have heard both the parties and had carefully gone through the record. After careful consideration of the record, I find that the defendant is entitled to produce evidence. The Hon’ble Apex court even after determination of question of possession by this court vide order, dated 17.4.2000, had passed orders for determination of question of possession afresh. The then learned District Judge had concluded the possession of the plaintiff vide order, dated 17.04.2000 and had submitted the record to the Hon’ble Apex court. The Hon’ble Apex Court had disposed of the Civil Appeal of the defendant by passing order, dated 14.02.2009. When the defendant wanted to produce evidence, I find no sound reason why he be not allowed to do so. The plaintiff shall be at liberty to produce evidence so as to rebut the evidence of the defendant. The application filed by the 9 plaintiff for decision of the appeals on the basis of evidence already on record is rejected.” 14. I am constrained to observe that the learned District Judge did not properly appreciate the order of this Court or of the Apex Court. He, in fact, tried to circumvent the same. The District Judge totally mis-read the order of the Apex Court by holding that the Apex Court had passed orders for re-determination of the question of possession afresh. There is no such direction of the Apex Court and none can be read into the order of the Apex Court. The report submitted by the then District Judge on 17.4.2000 had been submitted to the Apex Court but the Apex Court had not commented to the report meaning thereby that the report had neither been accepted nor rejected. Further more this was a case where the first Appellate Court was deciding the matter. In terms of the orders passed by this Court and Apex Court the predecessor District Judge had already recorded evidence and submitted his report on the issue of possession. How could the successor District Judge have reopened this order without any application for review or any application by the parties to lead additional evidence? In fact, in this case no 10 additional evidence could have also been allowed in view of the clear-cut directions of this Court and the order of the Apex Court that no further evidence was required to be recorded. 15. There is a hierarchy of Courts in the Country and the Courts subordinate in the hierarchy are bound to obey and comply with the judgments of the higher Courts. They cannot circumvent the judgments in the manner in which it has been done in the present case. The Apex Court in a recent case titled M/s.Atma Ram Builders Pvt. Ltd. vs. A.K. Tuli and others, Contempt Petition Nos.140-144 of 2011 in SLP(C) Nos.27755-27759 of 2010, decided on 10th May, 2011, has taken serious objection to such actions of section of subordinate judiciary in the country. Relevant portion of the judgment reads as follows: “We are constrained to say that a certain section of the subordinate judiciary in this country is bringing the whole judiciary of India into disrepute by passing orders on extraneous considerations. We do not wish to comment on the various allegations which are often made to us about what certain members of the subordinate judiciary are doing, but we do want to say that these kinds of malpractices have to be totally weeded out. Such subordinate judiciary 11 Judges are bringing a bad name to the whole institution and must be thrown out of the judiciary.” 16. In view of the orders of the High Court and the report of the predecessor District Judge, the successor District Judge had no right or authority to ask the parties to lead evidence, that too without even an application having been filed before him by either of the parties to lead evidence. It appears that the parties were more conscious about the effect of the orders of the Apex Court than the learned District Judge. 17. In view of the above discussion, I am constrained to hold that the action of the learned District Judge in recording evidence after the report on the issue for possession had already been delivered by the predecessor District Judge was totally contrary to the orders of the Apex Court and such action is totally illegal and invalid and therefore set-aside and the petition is accordingly allowed. The counsel of the plaintiff states that when evidence was being recorded he did not cross examine the witnesses since evidence was being recorded in violation of the orders of the superior Courts. This evidence shall not be treated to be part of the record and shall be struck off the record. In fact the 12 successor District Judge is not required to give any findings on the issue of actual or physical possession because that report is already complete and given by his predecessor District Judge. What is the effect of this report can be determined by the District Judge while deciding the matter. He can also decide the issue whether the amendment can be read retrospectively or prospectively. 18. Keeping in view the manner in which these proceedings have been decided by the learned District Judge, I am of the view that this may create a doubt in the mind of the parties. Therefore, taking suo motu action I direct that the matter shall be transferred from the Court of the learned District Judge to the Court of Additional District Judge, Shimla. Parties through their learned counsel are directed to appear before him on 20th June, 2011. The learned Additional District Judge, Shimla is requested to dispose of the matter, after hearing learned counsel for the parties, latest by 31st July, 2011. 19. It is made clear that the learned Additional District Judge shall decide the appeal in compliance with the earlier orders of this Court 13 as modified by the Apex Court totally uninfluenced by any other observations. June 1, 2011 (Deepak Gupta) PV Judge