IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO NO. 246 of 2008 Date of Decision: 29th September, 2008 Dr.Balak Ram Verma Petitioner Versus Shri Amreek Singh Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioner : Mr.Virender Singh Chauhan, Advocate. For the respondent No.1: Mr.R.L.Sood, Sr. Advocate, with Mr. Sanjeev Kumar, Advocate. For respondent No.2 : Mr. Shrawan Dogra, Advocate. Sanjay Karol, J. The present petition under Article 227 of the Constitution of India arises out of order dated 9th May, 2008 passed by Civil Judge (Jr. Division), Court No. III, Shimla, in Case No. 73/1 of 2000, titled as Dr. Balak Ram Verma vs. Sh. Amreek Singh and others, dismissing the petitioner’s application under Order 7 Rule 14 (3) read with Section 151, CPC. The dispute is inter se between Dr. Balak Ram Verma (petitioner) plaintiff and Shri Amreek Singh (respondent No.1), defendant No.1 and are referred to hereinafter as such. Whether the reporters of Local Papers are allowed to see the Judgment? 2 This case has got a chequered history and necessary facts are narrated hereinbelow. In the year 2000 plaintiff filed a suit for permanent prohibitory injunction praying for the following reliefs:- “(B) A permanent prohibitory injunction may be issued restraining the defendant No.1, his agents, servants or any other person claiming through or under him from interfering with easement of necessity of passage leading from the adjoining Municipal Road through Khasra No. 252/247/198 or raising any construction on Khasra No. 252/247/198, especially without leaving set off and set back area towards the land of the plaintiff comprised in Khasra 195, 197 and 246/198 (Khasra No.406/1, 406/2, 406/3 and 406/4 (old), situated Up Muhal Jakhu, Mahal Station Ward, Bara Shimla, H.P. (C) The defendant No.1 may be directed by way of a mandatory injunction to remove all encroachment, structure, construction or obstruction that may be found to have been raised on Khasra No. 752/247/198.” Defendant No.1 contested the suit by filing written statement and inter alia pleading that the plaintiff had no right whatsoever on the suit land as the defendant is the exclusive owner in possession of the same. On the suit land, there was no passage, which is evident from the plan (Aksh Tatima Shajra Kishtwar Bandobast Jadid) and revenue record (jamabandi). 3 In any event, the plaintiff has got an alternate existing path and passage from the adjoining land, which is also evident from the revenue record. Alongwith the suit the plaintiff filed two applications, one under Order 39 Rules 1 and 2, CPC praying for an interim relief of injunction and another under Order 26 Rule 9, CPC for appointment of Local Commissioner to visit the site and ascertain the factual position. After a hot contest, on 6.10.2000 both the applications stood dismissed by the trial Court. However, assailing the same, plaintiff filed an appeal before District Judge, Shimla, who in terms of order dated 18.9.2002 upheld the dismissal of the application filed under Order 39 Rules 1 and 2, CPC, but, however, allowed the plaintiff’s application filed under Order 26 Rule 9, CPC.. Aggrieved by the same, defendant No.1 approached this Court by filing Civil Revision No. 460 of 2002 and in terms of order dated 2.1.2004 this Court while setting aside the order passed by District Judge gave liberty to the plaintiff to move a fresh application for appointment of Local Commissioner at a subsequent stage. It was stated at the Bar that pursuant to the order passed by this Court, plaintiff did file a fresh application seeking appointment of Local Commissioner, which also was dismissed by the trial Court and since the plaintiff did not assail the order of dismissal the matter has attained finality. Inspite of the fact that the suit was filed in the year 2000, the issues could only be framed on 4.1.2007. Thereafter, various opportunities were afforded to the plaintiff to take steps for examining the witnesses, but, however, in spite of the matter being fixed for the said purpose on 4 13.3.2007, 23.3.2007, 2.7.2007, 8.8.2007 and 11.1.2008, he did not produce any evidence. Subsequently, it was only on 11.1.2008 that the plaintiff filed an application under Order 7 Rule 14 (3) read with Section 151, CPC seeking permission of the Court to place on record the following three documents:- “a) Report dt. 10.1.2008 of Er.H.S.Bist; b) The site plan and certified copy of the Shajra Kistwar dt. 2.11.2007 copy of the Aksh Shajra accompanying the report dt. 10.1.2008. c) Special Power of Attorney dt. 11.10.2000.” The application was heavily contested and considering the material in totality the trial Court dismissed the same on the ground that it was not maintainable. It is evident that in spite of five opportunities, the plaintiff failed to file list of reliance of documents mentioning these documents. For one reason or the other plaintiff had been delaying the trial in the suit. Document (b), the revenue record was always available with the revenue authorities and it was well within the plaintiff’s power to obtain copy thereof and place the same on record. In any event, defendant No.1 has placed on record the entire revenue record and the same can be considered during trial. As far as document (a) is concerned, it is a report dated 10.1.2008 prepared by a private expert indicating the proposed path which could be used by the plaintiff to have access through the defendant’s land. In the suit the plaintiff has claimed the passage through the defendant No.1’s land as an easementary right. The dispute was known to the plaintiff 5 at the time of filing the suit. The application, is extremely cryptic and conspicuously silent of any plausible explanation as to why it took almost 8 years for the plaintiff to get the said report prepared from an expert and file the same in the Court. In fact the said report ought to have been prepared and filed alongwith the suit. Defendant No.1 having raised construction cannot be a ground for allowing the documents to be placed on record. Further an expert’s report cannot prove whether the plaintiff had any easementary right or not. Document (c) is the Special Power of Attorney executed by the plaintiff in favour of Shri Jiwan Singh Thakur, whom the plaintiff intends to examine as his witness, for the reason that the plaintiff cannot depose due to his pre-occupation. Importantly, the special power of attorney was executed on 11.10.2000, but was not placed on record alongwith the suit. It was already in possession of the plaintiff and ought to have been filed alongwith the suit. It is not the plaintiff’s case that the Court had been informed on the dates fixed for evidence that the plaintiff would be deposing through his attorney in whose favour the said special power of attorney had been executed and the evidence could not be led due to the non-availability of the attorney holder. With the enactment of Code of Civil Procedure (Amendment Act), 2002, the position with regard to filing of the documents has changed. In view of the amended Order 7 Rule 14, CPC, it was expected of the plaintiff to have filed the list of documents relied upon as also the documents in its power and possession at least after the framing of the issues. 6 Importantly, the issues were framed on 4.1.2007 and till 11.1.2008 the plaintiff did not make known his intention of getting the report of the expert prepared for adjudication of the matter in issue in the suit. The legislative intent is to ensure that the trial is not procrastinated for one reason or another. In my view, the discretion granting leave to the plaintiff to place on record the documents has to be exercised judiciously to subserve and meets the ends of justice. In the present case, I have no doubt that the parties, who are affluent and educated were conscious of their rights and the provisions of law. The plaintiff has been unsuccessfully litigating in different Courts over a period of time and was having the best of the legal advise available with him. Apparently, the purpose of filing the application is to delay the proceedings. If not then he must suffer the consequences for his callousness. I am not taking a hyper technical view in the matter, but the discretion has to be exercised judiciously as the record shows that the plaintiff had been extremely callous in pursuing the matter perhaps with an endeavour not to pursue his suit expeditiously. The Court below itself has observed that inspite of repeated opportunities plaintiff has failed to lead any evidence. For the aforesaid reasons, I see no reason to interfere with the impugned order and the petition is accordingly dismissed. The trial Court shall decide the matter in accordance with law uninfluenced by any of the observations made hereinabove. 29th September, 2008 (Sanjay Karol) (C) Judge. 7