IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 467/2009 alongwith CMPMO No. 469/2009, CMPMO No. 62/2010 & CMPMO No. 235/2010 Date of decision: 21.09.2010 CMPMO No. 467 of 2009 I.P. Singh …Petitioner. Versus Roshan Lal …Respondent. CMPMO No. 469 of 2009 I.P. Singh …Petitioner. Versus Roshan Lal & another …Respondents. CMPMO No. 62 of 2010 Roshan Lal …Petitioner. Versus I.P. Singh & another …Respondents. CMPMO No. 235 of 2010 I.P. Singh …Petitioner. Versus Roshan Lal …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. CMPMO No. 467 of 2009 For the petitioner: Mr. Suneet Goel, Advocate. For the respondent: Mr. M.S. Thakur, Advocate. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. CMPMO No. 469 of 2009 For the petitioner: Mr. Suneet Goel, Advocate. For the respondents: Mr. Jeevesh Sharma, Advocate. CMPMO No. 62 of 2010 For the petitioner: Mr. M.S. Thakur, Advocate. For the respondents: None. CMPMO No. 235 of 2010 For the petitioner: Mr. Suneet Goel, Advocate. For the respondent: Mr. M.S. Thakur, Advocate. Deepak Gupta, J. (Oral) 1. These four petitions are being decided by one order. Though these petitions arise out of different suits, the bone of contention giving rise to the three suits is the same. 2. Civil Suit No. 297-1 of 96/92 is the oldest among the three suits and has a long and chequered history. This suit was filed by Shri Roshan Lal against Smt. Harbans Kaur. The main prayers made in the civil suit are as follows: “(i) To pass a decree for permanent prohibitory injunction against the defendant restraining her permanently from interfering in any manner whatsoever, and from encroaching upon or raising any construction / construction on the land and retaining wall of the plaintiff comprised in khasra No. 206/111, khata khatauni No. 27/35 measuring 0-5 bighas in mauza Kredu, Shimla, herself, through her workers, labourers, relatives, agents, attorneys etc. (ii) To pass a decree for mandatory injunction directing the defendant to restore the aforesaid land of the plaintiff to its original nature by demolishing the structure / construction which the defendant may succeed in raising over it during the pendency of the suit.” The allegation in the suit was that the parties are neighbours and when Roshan Lal started carrying out construction after getting the map and plan duly sanctioned, the defendant caused illegal interference in the retaining wall of the plaintiff and was trying to demolish the same. It is not disputed that S/Shri I.P. Singh and Dinesh Kulshresta purchased flats from Smt. Harbans Kaur, who was the original defendant in Civil Suit No. 297-1 of 96/92 on 30th September, 1999. 3. Shri Roshan Lal filed another Civil Suit bearing No. 59- 1 of 2002 against Shri I.P. Singh. In this suit, prayer made was as follows: “It is, therefore, most respectfully prayed that this Hon’ble Court may kindly decree the suit with costs for the grant of permanent prohibitory injunction against the respondent/defendant restraining him permanently from removing, damaging, breaking or interfering in any manner with the sewerage pipes which connects the sewer system of the building of the plaintiff standing on khata khatauni No. 117/223, khasra No. 974, measuring 184-87 sq. meters situated at Kareru, Tehsil and District Shimla, H.P. with the Central Sewer System of the Municipal Corporation, Shimla himself or through his agents, contractors, labourers, relations, servants or in any other manner whatsoever. Any other relief(s) which the Hon’ble Court may deem fit and proper in the facts and circumstances of this case and in the interest of justice may also kindly be granted to the plaintiff and against the defendant and further for the grant of mandatory injunction directing the defendant to reconnect/restore the sewerage pipelines which connects the sewer system of the building of the plaintiff with the central sewer system of the Municipal Corporation, Shimla and the said pipelines passes through the lad comprised in khata khatauni No. 34 min / 74 min, khasra No. 977, situated in Mauza Kreru, Tehsil and District Shimla, Himachal Pradesh.” 4. The third suit, i.e. Civil Suit No. 25/1 of 2004, was filed by S/Shri I.P. Singh and Dinesh Kulshresta. This suit was filed in the year 2004 and in this suit, the plaintiffs averred that they are owners in possession of the flats in Nirmal Niwas, Chakkar, Chak Kareru, Shimla-5 and that they have come to know that the defendant has illegally got the tatima and revenue entries changed in his favour. On this basis, the plaintiffs prayed for the grant of following reliefs: “(i) The Defendant be restrained by means of a permanent perpetual prohibitory injunction from interfering with the possession of the plaintiffs over the portion of land owned and possessed by the plaintiffs as detailed in the tatima relating to old khasra No. 112. (ii) The Plaintiff be allowed the costs of this suit. (iii) Any other relief which the court may considered deem fit and proper in the interest of justice may also be granted in favour of the plaintiff.” This suit was contested by the defendant. According to the plaintiffs, S/Shri I.P. Singh and Dinesh Kulshresta, when the written statement was filed, for the first time, they came to know that there was a previously instituted suit between Shri Roshan Lal and their predecessor in interest Smt. Harbans Kaur, which had been decreed in favour of Shri Roshan Lal on 29th February, 2000. Thereafter, S/Shri I.P. Singh and Dinesh Kulshresta filed an appeal against the judgment and decree passed in Civil Suit No. 297-1 of 96/92. The appeal filed by S/Shri I.P. Singh and Dinesh Kulshresta was allowed and the suit was remanded back to the trial Court for fresh disposal in accordance with law. The parties were directed to appear before the trial Court on November 21, 2007. Thereafter, an appeal filed by Shri Roshan Lal in this Court against the said order, being FAO No. 5 of 2008, was dismissed on January 7, 2008. Thereafter, S/Shri I.P. Singh and Dinesh Kulshresta moved a formal application for being impleaded as parties before the trial Court, but this application was rejected vide order dated 14th January, 2008. This order was again challenged before the learned District Judge, which was allowed on 31st October, 2008 and S/Shri I.P. Singh and Dinesh Kulshresta were allowed to contest the suit. Two of the petitions arise out of this suit, i.e. Civil Suit No. 297-1 of 96/92. These are CMPMO No. 467 of 2009 and 469 of 2009. CMPMO No. 467 of 2009: 5. By means of this petition, Shri I.P. Singh has challenged the order dated 8th May, 2009, whereby the Civil Judge (Senior Division) permitted Shri Roshan Lal to place on record the demarcation report carried out by the Kanungo on 25.3.2004 and the tatima tafawat dated 25.3.204 as well as the order dated 13.6.2005 passed by the Settlement Collector, Shimla. Another document which was permitted to be placed on record was the order of the Assistant Collector 1st Grade, Shimla dated 21.4.2006. The main objection to this order is that vide order of the Divisional Commissioner dated 26.6.2008, which had been passed even prior to the order passed by the learned trial Court, the order of the settlement Collector, Shimla, dated 13.6.2005 had been set aside. In fact, according to the petitioner, the learned Commissioner had also not accepted the demarcation report on the basis of which tatima had been made. It is also submitted before me that this order of the Divisional Commissioner is under challenge before the Financial Commissioner. 6. In view of the orders, which I intend to pass on all the main suits, it is apparent that the cases cannot be decided immediately, therefore, there is no harm in permitting the documents to be placed on record. Therefore, the present petition is rejected and the order of the learned Civil Judge (Senior Division) is upheld, but with the clarification that S/Shri I.P. Singh and Dinesh Kulshresta shall be permitted to place on record the certified copy of the order of the Divisional Commissioner. It is also made clear that merely because this matter is pending in the Civil Court, the Financial Commissioner shall not be restrained from deciding the matter and the Financial Commissioner is, in fact, directed to hear and decide the appeal filed by Shri Roshan Lal on its own merits. The order of the Financial Commissioner, if passed during the pendency of the suit, can also be placed on record by any of the parties. The learned trial Court, thereafter, may consider the effect of the orders passed, relied upon by Shri Roshan Lal and the subsequent orders passed by the Divisional Commissioner as well as the order, if any, passed by the Financial Commissioner. This petition is disposed of, accordingly. CMPMO No. 469 of 2009: 7. By means of this petition, the petitioner, Shri I.P. Singh, has challenged the order of the learned trial Court whereby the petitioner’s prayer to amend the written statement and by way of amendment to raise a counter claim in the written statement has been rejected. 8. I may not be in agreement with the reasons given by the learned trial Court for dismissing the application, but I find that there is another valid reason why this amendment need not to be allowed. Admittedly, as pointed out above, S/Shri I.P. Singh and Dinesh Kulshresta have also filed Civil Suit No. 25/1 of 204 and the prayer contained in the counter claim is virtually an amplification of the final prayer made in the main suit. A party cannot be permitted to litigate the same matter in two separate fora. The plaintiffs cannot be permitted to file a counter claim in the suit filed by Shri Roshan Lal. In any event, I am of the view that this amendment, even otherwise, is not really required to settle the dispute between the parties because the main issue is the boundary dispute relating to the properties of the respective parties. Therefore, this petition is rejected, accordingly. CMPMO No. 62 of 2010: 9. This petition has been filed by Shri Roshan Lal and arises out of Civil Suit No. 25/1 of 2004 which, as pointed out above, has been filed by S/Shri I.P. Singh and Dinesh Kulshresta. This petition is directed against the order dated 15.1.2010, whereby the evidence of the defendant Roshan Lal in this suit has been directed to be closed and he has not been given further opportunity to lead any evidence. 10. In view of the order, which I intend to pass in all the three suits together, this petition has to be allowed and Roshan Lal will have to be given an opportunity to lead evidence. Therefore, this petition is disposed of, accordingly. CMPMO No. 235 of 2010: 11. This petition has been filed by Shri I.P. Singh and arises out of Civil Suit No. 59-1/02 against order dated 1.6.2010 whereby the application under Order 8 Rule 1 (3) read with Section 151 CPC has been dismissed and the petitioner has not been permitted to place on record and prove certain documents. This petition is also allowed and the petitioner is given an opportunity to prove his case in view of the detailed order, which I am passing hereinafter in the main suits. 12. It is not disputed before me that the parties are neighbours. Their properties adjoin each other. Admittedly, the dispute is in respect of a retaining wall. Both the parties claim that the retaining wall is owned and possessed by them. The learned District Judge, Shimla, while remanding the case to the learned trial Court had clearly observed that this was a matter, which should be decided by the trial Court by appointing a Local Commissioner. As pointed out above, the appeal filed by Roshan Lal against the said order has been rejected by this Court. That order has attained finality. The learned District Judge in his order dated 01.11.2007 has categorically stated that this was a dispute, which could be best decided on the basis of a local investigation. He had, in fact, clearly held that even if any of the parties had not applied to court for appointment of a Local Commissioner, the Court in the facts and circumstances of the case, should itself direct such a local investigation. Despite this order having been passed and the matter being pending for more than two years, the learned trial Court has paid scant respect to the order of the superior court. 13. I also find that on 21.7.2009, the Civil Judge (Senior Division), Court No. 3, Shimla, who was dealing with Civil Suit No. 25/1 of 2004, rejected the application for consolidation of the said suit with Civil Suit No. 297/1 of 96/92 on the grounds that the parties were different and the khasra numbers were different. With due respect all that can be stated is that the learned trial Court did not try to understand what is the dispute between the parties. The genesis of the dispute is the retaining wall which is claimed by one party to be its property comprised in a particular khasra number and the other party states that the retaining wall is a part of its property depicted by another khasra number. The question is in which khasra number the retaining wall falls. Therefore, this matter, substantially in issue, is the same. The order dated 21.7.2009 is not the subject matter of challenge. But this Court cannot shut its eyes to the facts that the parties are litigating for the last about 18 years and this litigation can go on endlessly unless a serious effort is made to have all the disputes settled between the parties at the earliest. 14. I am clearly of the opinion that the only way in which all the three disputes can be settled is to ensure that all the three suits are heard and decided together and contradictory orders are not passed by the Courts. I hereby direct that all the three civil suits be heard together by the same Court. All the three suits are directed to be heard and decided by the Civil Judge (Senior Division) (previously known as Senior Sub Judge), Shimla. Since the three suits are at different stages, I do not intend to consolidate the same for the purposes of leading evidence. Evidence has been led in one case and evidence has still to be started in another case and in one case, it is complete. However, since the dispute is same, the cases should be heard and decided together. Therefore, Civil Suit No. 297-1 of 96/92, pending before court No. 3; Civil Suit No. 59- 1/02 pending in court No. 4 and Civil Suit No. 25/1 of 2004 pending in court No. 3 be transferred to the Court of Civil Judge (Senior Division). 15. In view of the directions passed by the learned District Judge earlier, the Civil Judge (Senior Division) is directed to appoint a Local Commissioner in Civil Suit No. 297-1 of 96/92. He shall ensure that the Local Commissioner so appointed is well versed with revenue law. This be done on or before 30th November, 2010. The Local Commissioner be requested to submit his report latest by 15th January, 2011. Local Commissioner shall give the copy of this report to both the parties. Objections, if any, to the report, can be filed on or before 28th February, 2011. In case evidence is required to be led on the report of the Local Commissioner to decide whether the report of the Local Commissioner is to be accepted or not, the said evidence shall be led and it shall be ensured that the objections to the report, if any, are decided latest by 31st March, 2011. In this case, both the parties submit that all the evidence has been led and no further evidence is intended to be led, except if need be, in respect of the report of the Local Commissioner. 16. Civil Suit No. 59-1 of 2002 shall also be transferred to the court of Civil Judge (Senior Division). This case is also fixed for final arguments. Now, I have allowed the application filed by I.P. Singh and Dinesh Kulshresta to place on record certain documents and prove the same; they are permitted to lead evidence to prove the said documents, if not directly admissible under law. S/Shri I.P. Singh and Dinesh Kulshresta are given two opportunities to produce their evidence. It shall be their duty to serve the witnesses. In case, witnesses do not appear despite service, then the Court shall taken coercive steps to ensure the attendance of the witnesses but it shall be ensured that the evidence of S/Shri I.P. Singh and Dinesh Kulshresta is complete latest by 31st March, 2011. Mr. Thakur submits that no evidence in rebuttal is proposed to be led. 17. In Civil Suit No. 25-1 of 2004, evidence of the defendant Roshan Lal has been closed. He is permitted to lead his evidence. He be given two opportunities to produce his evidence. It shall be his duty to serve the witnesses. In case, witnesses do not appear despite service, then the Court shall taken coercive steps to ensure the attendance of the witnesses but it shall be ensured that the evidence of Shri Roshan Lal is complete latest by 31st March, 2011. 18. Thereafter, the evidence in all the three suits will be complete and the report of the Local Commissioner shall also have been received in initial Civil Suit No. 297-1 of 96/92. Then the Court shall hear all the three cases together and if it feels, it can decide all the three cases by one judgment. The learned trial Court shall ensure that all the three suits are decided latest by 30th April, 2011. The parties through their counsel are directed to appear before the learned Civil Judge (Senior Division), Shimla on 25th October, 2010. The Registry shall ensure that the record of the two cases, which is before this Court is sent to the Court of Civil Judge (Senior Division) alongwith the copy of the judgment of this Court and the District Judge be also directed to send the record of the transferred case No. 59-1/02 to the Court of Civil Judge (Senior Division) so as to reach on or before 25th October, 2010. 19. All the petitions are disposed of in the aforesaid terms. No order as to costs. (Deepak Gupta) Judge September 21, 2010 (rajni)