IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.399 of 1999 Date of decision : July 8, 2010 Parkash Chand and another …Appellants. Versus Dharam Chand (dead) through LRs and others …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Bhupinder Gupta, Senior Advocate, with Ms Charu Gupta, Advocate. For the Respondents : Mr. Shrawan Dogra, Advocate. Surjit Singh, J (Oral) The present appeal, at the instance of the plaintiffs, was admitted on the following substantial questions of law: “1. Whether the Lower Appellate Court has wrongly rejected the application for amendment of the plaint filed by the plaintiff-appellants. When the amendment is necessary, could the same be rejected only on the ground that the same is belated, are not such reason to reject the application opposed to law? 2. Whether the trial Court has wrongly treated some of the issues to be preliminary, when such issues makes question of law and fact, could the suit of the plaintiff-appellants be dismissed on Whether reporters of the local papers may be allowed to see the judgment? …2… such preliminary issues without taking evidence on factual aspect of the mater involved in the suit? 3. Whether the suit of the plaintiff-appellants assailing the judgment and decree based on the compromise in the previous suit be held beyond the period of limitation merely on the ground that the commencement of the period of limitation was from the date of fraud came to be known to the party without deciding as to when such fraud has come to the notice of the plaintiff- appellants for the first time? 4. Whether both the courts below have misunderstood the provisions of Order 23 of the Code of Civil Procedure to hold the suit of the plaintiff-appellants not to be maintainable assailing the judgment and decree passed in the previous suit on the ground of fraud and mis-representation? 5. Whether the courts below without permitting the plaintiffs-appellants to lead the evidence on factual aspect of the matter could decide that the plaintiffs- appellants were estopped to file the suit assailing the compromise decree? 6. Whether the findings of the trial Court that the suit of the plaintiff is bad for mis- joinder of cause of action are erroneous and perverse unless the trial Court has not satisfied itself as to on which date the cause of action has actually arisen? …3… 7. Whether the judgment and decree passed by the Lower Appellate Court is opposed to Order 20 of the Code of Civil Procedure in not deciding the entire controversy involved in the matter? Is not the judgment and decree of the Lower Appellate Court vitiated on account of non- application of mind to the question of law and facts and not giving reasons for upholding the judgment and decree passed by the trial Court on all the issues? 8. Whether the Lower Appellate Court has acted beyond the jurisdiction in giving directions to the appellants while dismissing the appeal as contained in the relief clause of the impugned judgment and decree? Is not the said approach wholly illegal, erroneous and perverse?” 2. Appeal is directed against the judgment and decree dated 7th August, 1999 of learned District Judge, whereby, dismissing the appeal of the plaintiffs-appellants, judgment and decree dated 25th July, 1997 of the trial Court, dismissing the suit of the plaintiffs-appellants, has been affirmed. 3. The suit, out of which this appeal has arisen, was the third round of litigation between the parties. First round started with the institution of a suit in the year 1985 by the plaintiffs-appellants, seeking a declaration that they had exclusive right to irrigate their land by the water of a source, situated just outside their land, description of which …4… was given in the plaint. They also prayed for permanent prohibitory injunction restraining the defendants- respondents from interfering in their exclusive right to irrigate their land from that water source and also from interfering in their irrigated land by digging any channel in that land, for carrying water to their land lying beyond the suit land. 4. An application for temporary injunction was also filed. That application was dismissed by the trial Court on 5th June, 1986. Appeal was filed against the order of dismissal of the application for temporary injunction. During the pendency of that appeal, a compromise took place between the parties. Terms of the compromise were reduced into writing, in form of statements of one of the plaintiffs and their counsel as also the statements of the defendants-respondents/their counsel. In terms of that compromise, the main suit itself was decided, vide order dated 23rd December, 1986. It was ordered that the suit shall be deemed to have been decreed in terms of the compromise and the statements containing the terms and conditions of the compromise treated as part of the decree. 5. According to the compromise, for ten hours in a day water of the source could be used by the plaintiffs and for the remaining 14 water was to be used by the defendants-respondents, by carrying the same through the suit land of the plaintiffs, by means of a defined channel. …5… The first round of litigation ended with that compromise decree. 6. Second round started with the filing of another suit by the plaintiffs-appellants in the year 1988. In that suit, it was pleaded that there had been a compromise between the parties in the Court of Additional District Judge, Solan, in the earlier suit and that while taking water to their land, pursuant to the compromise, the defendants- respondents had damaged the crop of the plaintiffs and, therefore, decree of permanent prohibitory injunction restraining the defendants-respondents from damaging the crop of the plaintiffs-appellants was sought, in addition damages to the tune of Rs.500/-. In that suit, not only that the compromise or the compromise decree was not assailed but rather the same were acknowledged and admitted to be binding on the parties. That suit was dismissed and appeal was carried to the Court of District Judge by the plaintiffs- appellants. Learned District Judge was approached by the plaintiffs-appellants to grant permission to withdraw the suit, with liberty to file a fresh one on the same cause of action. That prayer was granted and with that the second round of litigation ended on 8th January, 1992. 7. Third round started with the institution of the suit, out of which this appeal has arisen. It was pleaded that the compromise arrived at in the first round of litigation was illegal and not binding upon the plaintiffs, …6… inasmuch as it was not signed by one of the plaintiffs, namely Durga Ram, and otherwise also it was not in accordance with the provisions of Order 23 Rule 3 of the Code of Civil Procedure. The suit was dismissed by a sketchy order, on the ground that a Subordinate Court could not set aside a compromise decree passed by a higher Court. Appeal filed against that order was dismissed by the District Judge. Matter came to this Court and this Court, vide judgment dated 19th July, 1996, passed in RSA No.123 of 1996, remanded the case to the trial Court, with the direction to frame issues and to try and decide the suit, in accordance with law. 8. Defendants-respondents raised a number of preliminary objections. Trial Court framed a large number of issues on 31st August, 1996 and the following issues, framed on that date, were ordered to be treated as preliminary issues: “3. Whether the suit is not maintainable in the present form? 7. Whether the suit of the plaintiff is barred by principle of resjudicata? 12. Whether the suit is barred u/o 23 Rule 1 and Rule 3 CPC as alleged? 13. Whether the suit of plaintiff is barred u/o 23 rule 1 and 3 CPC, and u/s 34 of Specific Relief Act and u/o 2 Rule 2 CPC as alleged? 15. Whether the suit is bad for mis-joinder of the causes of actions and plaintiff has got …7… no cause of action to file the present suit as alleged? 16. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? 19. Whether this court has no jurisdiction to try the present suit as alleged?” 9. Parties led evidence, with respect to the aforesaid preliminary issues, and the matter was then listed for hearing arguments. On 4th July, 1997, when the matter was taken up for hearing arguments, issues were recast and out of the recast issues, following issues were ordered to be treated as preliminary issues: “3. Whether the suit has been filed within the limitation? 5. Whether the plaintiffs are estopped to file the present suit by their own act, conduct and acquisance? 6. Whether the suit is not maintainable? 7. Whether the suit is barred by the principle of resjudicata? 11. Whether the suit is barred under order 23 rule 1 & 3A CPC as alleged? 12. Whether the suit is barred under section 34 of the Specific Relief Act? 13. Whether the suit is barred under order 2 rule 2 CPC as alleged? 14. Whether the suit is bad for the mis-joinder for the cause of action? …8… 16. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? 18. Whether this court has jurisdiction?” 10. Parties were not afforded any opportunity to lead evidence and it was noted that the parties had already led evidence qua the preliminary issues framed on 31st August, 1996 and the evidence so led was to be treated evidence qua recast preliminary issues. Some of the recast issues were different from the originally framed preliminary issues, not only in form but also in substance, for example issues of limitation and estoppel were not there earlier but such issues were framed on 4th July, 1997. Parties were not given opportunity to lead evidence qua these two preliminary issues. Trial Court then heard the parties and decided issues of limitation, estoppel, maintainability, bar under Order 23 Rule 3 Code of Civil Procedure and misjoinder of causes of action in favour of the defendants- respondents and against the plaintiffs-appellants and consequently dismissed the suit. 11. Plaintiffs filed appeal in the Court of District Judge. They also filed an application, under Order 6 Rule 17 of the Code of Civil Procedure, seeking leave of the Court to amend the plaint, so as to raise the plea that the compromise was the result of fraud, misrepresentation and connivance between the counsel for the plaintiffs and the …9… defendants-respondents and the compromise had been arrived at by the counsel beyond his authority. 12. Learned District Judge dismissed the application for amendment and upheld the findings of the trial Court on all the aforesaid issues and consequently dismissed the appeal, vide impugned judgment. 13. I have heard the learned counsel for the parties and gone through the record. 14. It is submitted on behalf of the plaintiffs- respondents that the issues pertaining to limitation and estoppel were mixed questions of law and facts and plaintiffs-appellants, having not been afforded any opportunity to lead evidence qua these issues, have been prejudiced and the judgments and decrees of the two Courts below are liable to be set aside on this score alone. 15. It is true that often issues pertaining to limitation and estoppel are mixed issues of law and facts, but it depends from case to case and sometimes such issues may be only issues of law. In any case, plea of limitation was raised by the defendants-respondents with the allegation that compromise decree had been passed in the year 1986, which fact was not denied by the plaintiffs- appellants and that since it was being challenged by filing a suit in the year 1992, the suit was barred, as the limitation prescribed for this kind of suits was governed by Article 113 of the Limitation Act and the period prescribed was only …10… three years. It has never been the case of the plaintiffs- appellants that they were not knowing that there was a compromise decree. In fact in the year 1988, acknowledging the validity and legality of the compromise and the decree based on it, they filed a suit against the defendants-respondents, seeking a decree of permanent prohibitory injunction restraining them from damaging their crops, while taking water through their land, pursuant to the aforesaid decree of 1986. Under these circumstances, there was hardly any need for affording an opportunity to the parties for leading evidence qua the additional preliminary issue of limitation, framed on 4th July, 1997. 16. Plea of estoppel was also based on the contention that in the earlier suit of 1988 validity of the compromise and the decree passed thereon having been acknowledged, the plaintiffs-appellants were estopped to challenge their legality. Therefore, for the reasons stated hereinabove, while rejecting the submission, with regard to the issue of limitation, it is held that no prejudice has been caused to the plaintiffs-appellants, on account of non- affording of fresh opportunity to the parties to lead evidence qua this issue also. 17. With regard to the rejection of the application for amendment of plaint, it is submitted by the learned counsel for the plaintiffs-appellants that the reasons given by the learned District Judge are contrary to the settled …11… proposition of law. Learned Additional District Judge has dismissed the application, holding that it is belated one and that the intention of the plaintiffs-appellants is only to protract the proceedings. 18. It is true that delay, by itself, cannot be a ground for rejecting a request for amendment of pleadings, but when the request is not bonafide and the intention is only to protract and prolong the litigation, the Courts are justified in rejecting the same. In the present case, as already noticed, controversy between the parties came to an end in the year 1986, when a compromise decree was passed. The compromise and the decree based on it were acknowledged to be valid and were even sought to be enforced by the plaintiffs-appellants themselves, when they filed a suit in the year 1988. They challenged the decree, for the first time, when in the year 1992 the suit, out of which the present appeal has arisen, was filed. Even then they did not plead that the compromise was the result of any fraud or misrepresentation or connivance, as they wanted to plead by making amendment in the plaint. Not only this, they reposed faith in the very counsel, who allegedly connived with the defendants-respondents, when they instituted the second suit in the year 1988, because that suit was also filed through that very counsel, meaning thereby that the plea, which they wanted to incorporate by amendment was nothing but a contrivance to delay the …12… matter to keep the defendants-respondents involved in the litigation. Therefore, I see nothing wrong with the order of rejection of the application for amendment of plaint. 19. Another submission made by the learned counsel for the appellants is that once the trial Court had framed the issues, covering every point of dispute between the parties, it could not have segregated the preliminary issues and dismissed the suit only on the basis of findings on such preliminary issues. In support of this argument, he has placed reliance upon a Full Bench judgment of this Court reported in Latest HLJ 2006 (HP)(Full Bench) 1179, Prithvi Raj Jhingta and another versus Gopal Singh and another. Argument has been noticed only to be rejected. Full Bench of this Court, in the aforesaid judgment, has held that where all the issues are framed and tried simultaneously, it is not permissible for the trial Court to separate some issues as preliminary issues of the kind referred to in sub-rule (2) of Rule 2 of Order 14 of the Code of Civil Procedure thereafter and to decide them and dispose of the case on the basis of findings on such issues. 20. Submission made by the learned counsel for the plaintiffs-appellants, with regard to the finding of the two Courts below, on the issue pertaining to mis-joinder of causes of action, appears to be well merited. Plaintiffs- appellants filed a suit, challenging the legality of compromise decree, alleging that the same was contrary to …13… the provisions of Order 23 Rule 3 of the Code of Civil Procedure. No other cause of action had been joined with this cause of action, except that they sought permanent prohibitory injunction restraining the defendants- respondents from taking any benefit, under the aforesaid alleged unlawful decree. 21. In view of the above discussion, all the substantial questions of law, except substantial question of law No.6, are answered against the plaintiffs-appellants. Consequently, the appeal is dismissed. Appeal stands disposed of. Pending application(s), if any, also stand disposed of. July 8, 2010(sd) ( Surjit Singh ), J