1 (1) S.B.CIVIL WRIT PETITION NO.2123/2006 Nathmal & anr. Vs. ADJ No.2, Bikaner & ors. (2) S.B.CIVIL WRIT PETITION NO.2124/2006 Nathmal & anr. Vs. ADJ No.2, Bikaner & ors. Date of Order :: 26th September 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. J.K.Bhaiya, for the petitioners. Mr. Vineet Jain, for the respondent No. 2. .... BY THE COURT: These two writ petitions have been preferred against different orders dated 10.08.2005 and 09.11.2005 as passed by the Additional District Judge No.2, Bikaner in the same appeal (Civil Appeal No.31/2005) rejecting the applications moved by the appellants-petitioners for amendment of pleading and for productions of documents. Arising out of the same appeal and involving inter-related and rather akin issues, these petitions have been heard together and are taken up for disposal by this common order. In brief, the aspects relevant for the present purpose are that the appeal aforesaid has been preferred against the judgment and decree dated 29.01.2004 as passed by the Civil Judge (Junior Division), Nokha in the civil suit (CO No. 24/1992) that was filed by the plaintiff-respondent No. 2 Bherudan for perpetual and mandatory injunction wherein 2 Parsi Devi wife of Bhikham Chand Sukhlecha, Munna Lal son of Bhikham Chand Sukhlecha (the present petitioner No. 2), Municipal Board, Nokha Mandi and Assistant Engineer, Rajasthan State Electricity Board, Nokha Mandi were impleaded as the defendants Nos.1 to 4 respectively. Put in a nutshell, the case of the plaintiff had been that his family was residing at Noka Mandi in his house situated in a densely populated residential area known as Gandhi Chowk; that the defendant No.2 was carrying on the business of manufacture of sweet meat, namkin and papad in the name and style of M/s Jain Mishthan Bhandar and for the purpose, he has established a workshop in the house belonging to his mother, the defendant No.1, that was situated adjacent to the said house of the plaintiff. While elaborating on the various processes undertaken for such manufacture, the plaintiff complained that the defendant No.2 had commissioned various furnaces, water tanks, chilling plant, generator etc. and all of them were causing nuisance and creating pollution in different manner; and also alleged that his house had suffered substantial damage because of such activities. The plaintiff alleged that the defendant No.2 had been carrying on with such activities in contravention of the laws and the authorities concerned were not taking requisite action against him. While stating the cause of action having arisen upon establishment of the factory at premises in question and then in the month of 3 June 1992 upon expansion of the factory work, the plaintiff prayed for the reliefs of directions to the defendants Nos.1 and 2 to refrain from carrying along with such activities at the premises in question and to have the same removed; and of further directions to the defendants Nos. 3 and 4 to take appropriate proceedings to curb the nuisance. The defendants Nos.1 and 2 filed a joint written statement and, while denying the plaint averments, alleged, inter alia, that the defendant No.2 was not the owner of the said business of Jain Misthan Bhandar or of the disputed factory. The allegations relating to nuisance and pollution were denied and the defendants did take the pleadings that the defendant No.1 was owner of the premises in question but had given the same on rent and was not related with the business in dispute; that the defendant No.2 was not the owner of the business in question or of the said manufacturing process; that Nathmal son of Bhikham Chand Jain (the present petitioner No.1) was the owner of the business that was carried in the name of M/s. Jain Misthan Bhandar; and that that the actual owner of business in question had not been impleaded a party to the suit despite specific objection of the defendants. It was also alleged by the defendants that the business in question was going on for about ten years and suddenly the flood of complaints had come up for otherwise intentions and, according to the defendants, the genesis of 4 such dispute had been in the fact that the relative of the plaintiff contested the municipal elections and Nathmal extended his support to the opposite party. It is borne out from the material placed on record that before filing of the written statement, the defendants Nos.1 and 2 did move an application in the suit under Order VII Rule 11 of the Code of Civil Procedure (CPC) and it was argued that the plaintiff had no cause of action against them. However, the said application was disallowed by the learned Trial Court by its order dated 29.05.1995. It appears further that issues in the case were framed on 07.05.1997 and thereafter, while the matter was going on for the plaintiff's evidence, the defendant No.1 Parsi Devi expired and, on an application moved by the plaintiff on 03.07.2000, the legal representatives of the deceased defendant No.1 Parsi Devi, including the present petitioner No.1 Nathmal, were substituted as defendants by the order dated 02.04.2002. It is noticed that by the said order dated 02.04.2002, the plaintiff was also directed to submit amended cause title, process fees, and summonses for the defendants; and the matter was adjourned to 17.04.2002. The plaintiff did file amended cause title on 17.04.2002 and then, the matter was adjourned, purportedly for the purpose of filing of ‘amended reply title’, as stated in the order-sheets dated 27.05.2002, 02.08.2002 and 02.09.2002. 5 On 02.09.2002, the matter was adjourned to 09.10.2002 with directions to the plaintiff to produce his evidence. Then, on 22.10.2002, for the plaintiff having not produced any other witness, his evidence was closed. Then the matter was proceeded in defendant’s evidence from 12.10.2002 to 22.10.2003. Final arguments were heard on 28.01.2004 and ultimately the suit was decided by the judgment and decree dated 29.01.2004. While deciding the issues related with the questions of pollution and nuisance essentially in favour of the plaintiff, the learned Trial Court granted a decree for perpetual and mandatory injunction and directed the defendants not to carry on with the disputed business in the premises in question and also directed the defendant No.4 to alter the electricity connection at the said premises from industrial to a residential one. The decision on the issues relating on the complaint of the plaintiff about nuisance and pollution relates to the merits of the case and is not directly relevant for the present purpose. However, relevant it is to notice that issue No.3 had been framed in this case on the question as to whether the defendant No.2 was carrying on business in the name and style of M/s. Jain Misthan Bhandar and issue No. 13 on the question if no effective order could be passed in the case for the plaintiff having not impleaded the owner of the business 6 concerned as a party to the suit. Issues Nos.3 and 13 read as under:- ''तनक सख 3.- “ ह ह कक पततव द स. 2 नख मण म ज न तमष न भण र क न म स नमकन और तमठ ई  बन न क व वस करत ह " तनक सख -13 “आ व द न ववव कदत क रख न क म त%क क पकक र नह बन ह , इस क रण न % पकरण म पभ व+ आद श प ररत नह कर सकत " These two issues, i.e., issues Nos.3 and 13, were taken up by the learned Trial Court for consideration together and, with reference to the evidence available on record and with the observations that the defendants have failed to produce positive evidence, the learned Court did not accept the case of the defendants that Nathmal was the owner of disputed business and observed that after the death of Parsi Devi, Nathmal was indeed joined as defendant in the suit. The learned Trial Court held that the plaintiff has been able to establish the facts as involved in issue No.3 and decided the same in his favour and further held that the defendants have failed to establish the facts involved in issue No.13 and decided the same against them. Aggrieved by the judgment and decree aforesaid, the present petitioners Nathmal and Munnalal (respectively the defendants Nos.1/1 and 2 in the suit) have preferred the said 7 first appeal under Section 96 CPC that remains pending with the Additional District Judge No.2, Bikaner. During the pendency of the appeal, an application (Annexure–2 in CWP No.2123/2006) came to be moved by the appellant No.1 Nathmal, purportedly under Order VI Rule 17 read with Section 151 CPC and essentially with the submissions that some of the facts necessary for just decision of the case have not been specifically pleaded and clarificatory amendment may be allowed, inter alia, to the effect that Nathmal was the owner of the business in question but he has not been shown as such and Munnalal was wrongly shown as the owner of the said business. It was also suggested that Nathmal did not get an opportunity of filing his written statement; and that the business in question commenced on 06.01.1984 and Nathmal was the owner thereof as is evidenced from the official records. The learned Appellate Court took up for consideration, and rejected, the said application for amendment by its order dated 10.08.2005 (Annexure–3 as impugned in CWP No.2123/2006) with the observations that the facts sought to be incorporated by way of amendment were in the knowledge of the defendants at the time of filing of the written statement and were not of any subsequent event; and that issues Nos.3 and 13 have not been decided for want of pleadings but with the observations that the defendants had failed to adduce documentary 8 evidence in relation to the facts required to be established by them. The learned Appellate Court also observed that the documentary evidence ought to have been produced by the defendants before the subordinate Court and that the same could be filed with reference to appropriate legal provisions. The learned Appellate Court was of opinion that both the parties led their evidence and merely because the defendants did not adduce necessary evidence before the Trial Court, it was not justified to allow the amendment and to extend them another opportunity of leading evidence. The learned Appellate Court also observed that mother and brother of Nathmal did take the pleading about ownership of Nathmal and now, his taking of any such pleading would not be of much effect because during pendency of suit, Parsi Devi expired and he (Nathmal) was indeed joined as a defendant. After passing of the aforesaid order dated 10.08.2005, yet another application (Annexure–4 in CWP No.2124/2006) for amendment came to be moved, this time by the appellant No.2 Munnalal and, while making a reference to the application moved in the suit proceedings under Order VII Rule 11 CPC and reply thereto as filed by the plaintiff, it was contended that the said application was rejected by the Trial Court upon the submissions of the plaintiff that even if the defendant No.2 Munnalal was not the owner of the disputed works, he was liable nevertheless for the illegal acts and that 9 Munnalal was owner of the ice-cream factory established at the disputed premises. It was alleged in the application for amendment now moved in the appeal that for the aforesaid reasons, all the facts and documents could not be referred in consultation with Nathmal and though Nathmal was joined as legal representative of Parsi Devi and the matter was kept pending for filing reply to the amended plaint in the Trial Court but without closing such reply, the matter was placed for evidence as would appear from the order-sheet dated 09.10.2002. The appellant contended that no specific issue was framed regarding ownership of the factory in question; and the alleged ice-cream factory of the defendant Munnalal was not forming the basis of the impugned decree. It was further alleged that after decision of the suit, Nathmal was made aware of the entire position and he too has filed the appeal. It was also asserted that without hearing Nathmal, who was impleaded only as a legal representative of Parsi Devi, no specific decree personally against him could have been passed. The earlier application for amendment as moved by Nathmal was also referred and the appellant Munnalal deduced that probably because there was no written statement of the defendant Nathmal that the Appellate Court did not consider it proper to allow the prayer for amendment on his behalf. It was also stated that Munnalal was not aware 10 of all the facts as the documents were in possession of Nathmal and then, for the plaintiff treating Munnalal only a servant in the reply to the application under Order VII Rule 11 CPC, the facts could not be pleaded after obtaining all the documents. It was prayed that the amendment in the written statement be allowed and the appellant be permitted to take the additional pleas that were stated more or less to the same effect as were suggested in the earlier application moved by Nathmal, as referred hereinbefore. Yet another application (Annexure-6 in CWP No.2124/2006) was moved in the appeal, purportedly by both the appellants, with reference to the provisions of Order VIII Rule 1A and Section 151 CPC seeking leave to produce certain certificates allegedly issued by the government offices including the registration certificate of the business in question with the submissions that the relevant documents were not in power and possession of the defendant No.2 and the defendant No.1 was not directly or indirectly a party in the suit before framing of the issues and hence, the relevant documents could not be filed. The applications aforesaid were put to contest by the plaintiff by filing replies (Annexure-5 and Annexure-7 in CWP No. 2124/2006), inter alia, with the submissions that the objections with reference to the facts aforesaid could have been taken while producing Nathmal before the Trial Court; 11 and Nathmal himself could have raised such objections but neither the applicant-defendant No.2 produced him in evidence nor Nathmal himself appeared in evidence to rebut the facts established by the plaintiff. By its order dated 09.11.2005 (Annexure–8 as impugned in CWP No.2124/2006), the learned Appellate Court proceeded to reject the said application for amendment with reference to the previous order dated 10.08.2005 (Annexure–3 as impugned in CWP No.2123/2006) and with the observations that nothing was shown in the application as to why such facts were not taken up in the earlier application and as to why the amendment was not prayed for in the Trial Court. The learned Appellate Court observed that though the amendment is not disallowed merely for delay but when all the facts were in the knowledge and opportunities were available, not raising of the pleas was fatal. The learned Appellate Court was of opinion that the prayer for amendment was not made bona fide and the appellants were not entitled to pick up the facts one by one and then to move the applications for amendment; and observed that such process of amendment might not permit a matter to be brought to finality ever. So far the other application for production of the documents was concerned, the learned Appellate Court again observed that the application was grossly belated and was not bona fide as the documents were quite old and were always in the 12 knowledge of the appellants; and there was no reason as to why they were not filed before settlement of issues in the Trial Court. The learned Appellate Court again observed that the appellant intended to produce the documents one by one at his sweet will and such a procedure was not countenanced by law. Accordingly, the learned Appellate Court proceeded to reject both the applications by its order dated 09.11.2005. Assailing the aforesaid orders dated 10.08.2005 and 09.11.2005, learned counsel for the appellants-petitioners has strenuously contended that the learned Appellate Court has acted illegally in rejecting the applications moved by the appellants without looking into the record of the case and without appreciating the facts that the appellant Nathmal was joined as party at the later stage in the suit only as a legal representative of the defendant No.1 Parsi Devi and did not get adequate opportunity of pleading his case or leading evidence. Learned counsel contended that the facts sought to be pleaded and documents sought to be produced go directly to the root of the matter as the plaintiff was not entitled to seek injunction against the impleaded defendants particularly when they were not the owners of business and works against which the complaint of nuisance was being made. Learned counsel contended that the applications for amendment and for production of documents ought to have been allowed in the interest of justice and orders impugned, if allowed to stand, 13 would occasion in grave failure of justice. Learned counsel for the contesting respondent-plaintiff has strenuously opposed; and with reference to the facts available on record contended that evidently, the appellants avoided to plead a specific case before the Trial Court and at a grossly belated stage before the Appellate Court moved the applications after applications in a haphazard manner that were suffering from want of bona fide. Learned counsel submitted that the delay in the present case being directly relevant, the applications have rightly been rejected on this count. Learned counsel contended that the first application for amendment was totally baseless and was rightly rejected by the order dated 10.08.2005 on all the relevant considerations including the one that the suggesting pleadings were not of subsequent events, that basic plea had already been taken in the written statement, and that an amendment cannot be allowed merely to fill up lacunae. According to the learned counsel, it has also rightly been noticed that Nathmal had been impleaded in the suit and came on record, albeit as legal representative of Parsi Devi, but no fact was pleaded or asserted on his behalf in the Trial Court. Learned counsel further supported the subsequent order dated 09.11.2005 on the same submissions and with the emphasis that the appellants are not entitled to elongate the proceedings by filing repeated baseless applications and such an attempt has 14 rightly been pronounced against by the learned Appellate Court. After conclusion of their submissions, the learned counsel for the parties were posed the question about the memorandum of appeal as filed by the appellants-petitioners before the first Appellate Court and the learned counsel for the petitioners has filed a copy of the memorandum of appeal in CWP No.2123/2008. Having given a thoughtful consideration to the entire matter, this Court is of opinion the applications in question are required to be restored for reconsideration by the learned Appellate Court at the time of final hearing of the appeal. Apparent it is that the learned Appellate Court is dealing with a regular first appeal under Section 96 CPC as filed by the present petitioners (defendants Nos.1/1 and 2). Though, as noticed above, the learned Trial Court decided issues Nos.3 and 13 in favour of the plaintiff but then, such findings on issues Nos.3 and 13 have also been assailed in appeal, apart from the challenge to the other findings in relation to the questions of nuisance and unlawful use of the premises in question. From the copy of memorandum of appeal as placed on record by the learned counsel for the petitioners, it appears that the petitioners-plaintiffs have taken the ground in explicit terms that Nathmal was the owner of the business in question whereas the suit was filed while alleging Munnalal as the 15 owner. It has also been contended in the said memorandum of appeal that for his having not been joined as party in the suit, Nathmal did not get proper opportunity of filing reply nor plaintiff's evidence was recorded in his presence and he did not get the opportunity of cross-examination. The applications seeking leave to amend and to produce documents are essentially co-related with the said grounds sought to be urged in the appeal in challenge to the findings on the said issues Nos. 3 and 13. An examination of the impugned orders dated 10.08.2005 and 09.11.2005 makes it clear that the learned Appellate Court took up for consideration such applications as moved by the appellants for amendment of pleadings and for production of documents without hearing and considering the appeal on merits. For their very nature, such applications, for amendment of pleadings, for production of documents, and of the like nature, when moved before the Appellate Court, ordinarily, cannot be and should not be taken up for consideration without first hearing and examining the appeal on merits. It remains trite that the legitimate occasion for dealing with such applications is when the appeal is heard and considered on merits. In the present case, the appeal is pending before the first Appellate Court and this Court would not like to make any comments on the merits of the case of either of the parties or 16 on any of the questions or issues but, for the purpose of this order, relevant it is to notice that the submissions as made by the appellants in the applications particularly about the effect of reply as filed by the plaintiff in the Trial Court to the application under Order VII Rule 11 CPC and about the order- sheets relating to the progress of the suit on the question of opportunity to Nathmal to plead his case would require consideration in the main appeal; and, in the totality of the circumstances, it would have been proper and appropriate for the learned Appellate Court to have considered the applications in question while hearing the appeal and after examining the entire matter. Similarly, the application seeking leave to produce documents as moved before the Appellate Court even when titled to be under Order VIII Rule 1A CPC, the Appellate Court would be required to consider the same with reference to the provisions dealing with the powers of the Appellate Court to admit further evidence in appeal; and, again, the legitimate occasion for the Appellate Court to dispose of such application would not be before the appeal is heard on merits and after examining the evidence on record when some inherent lacuna or defect becomes apparent calling for exercise of the discretion by the Appellate Court. Delay in applying could also be one of the relevant considerations with reference to the requirement of due diligence per Order XLI Rule 27 CPC 17 but all such aspects should have been taken up for consideration by the learned Appellate Court after hearing the appeal on merits and after examining the entire matter. In view of the serious questions involved between the parties and the overall circumstances of the case, consideration of, and decision on, the applications aforesaid by the learned Appellate Court in isolation and apart from the merits of appeal does not appear appropriate; and on this count only, the impugned orders are not approved. Else this Court would reiterate that none of the observations herein shall have any bearing on merits of the case of either of the parties whether on the main appeal or on the said applications. Accordingly, these writ petitions are allowed only to the extent indicated above. While, the impugned orders dated 10.08.2005 and 09.11.2005 are set aside, the applications as moved by the appellants are restored for reconsideration by the learned Appellate Court in the light of the observations made hereinabove along with final hearing of the appeal. It is, of course, noticed that the suit in question was filed way back in the year 1992. It shall, therefore, be expected of the learned Appellate Court to proceed with the matter expeditiously. However, there shall be no order as to costs of these writ petitions. (DINESH MAHESHWARI), J. MK 18 S.B.CIVIL WRIT PETITION NO.2124/2006 Nathmal &