IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO Nos.178 and 179 of 2009. Date of decision: 17.04.2009. 1. CMPMO No.178 of 2009. Balbir Singh …Petitioner Versus Prithi Chand & Others …Respondents 2. CMPMO No.179 of 2009. Balbir Singh …Petitoner Versus Prithi Chand & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Vikas Bhardwaj, Advocate. For the Respondents: None. Dev Darshan Sud,J. Both these petitions are being disposed of by a common order. CMPMO No.178 of 2009 has been instituted by the petitioner herein, who is the defendant in the Civil Suit, challenging the order passed by the learned Civil Judge (Junior Division), Indora, directing the case to be placed before the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 learned District Judge, Kangra at Dharamshala for appropriate orders. The plaintiff had instituted the suit out of which these proceedings arise praying for a declaratory decree that he is the owner of the truck in dispute from which he had been forcibly dispossessed and consequential decree for mandatory injunction for its return and damages which were quantified at Rs.1,25,569/- During the course of the proceedings, an application under Order 7 Rule 11 of the Code of Civil Procedure was preferred by the petitioner-defendant herein pleading that the value of the truck was more than that as disclosed by the plaintiff and the suit deserves dismissal. This application was disposed of on 24.6.2008 by the learned trial Court directing the plaintiff to make up the deficiency of Court fee within four weeks from the date of the order which order was complied with. On 29.7.2008 when the case was taken up, the learned trial Court passed an order that since the valuation of the suit after affixation of Court fee was beyond the pecuniary jurisdiction of the Court, the case be sent to the Court of learned District Judge for appropriate orders. This order has been challenged in CMPMO No.178 of 2009 filed on 5th March, 2009. The reason for challenging this order is discernible from further proceedings in the Court of the learned District Judge, when on 27.11.2008 the case was taken up for decision on an application under Section 151 of the Code of Civil Procedure 3 filed by the petitioners/defendants praying that an opportunity be granted to lead evidence. The learned District Judge, dismissed the application holding that adequate opportunity had been granted to the defendants and the learned trial Court by its order dated 6.5.2008 had rightly closed the right of the defendants, petitioners herein, for leading evidence. Aggrieved from this order, CMPMO No.132 of 2008 was preferred by the respondent herein which petition was dismissed by this Court and Special Leave Petition carried to the Supreme Court was also rejected. The rationale/point of law urged for permission to lead evidence was that on 6.5.2008, there was no jurisdiction vested in the learned trial Court to have passed the order closing the right of the petitioners to lead evidence. Prima facie, the argument and contention urged seems attractive, but from closer examination, I find that this is nothing but an attempt by the defendants to prolong the litigation and to circumvent the order in CMPMO No.132 of 2008, titled: M/s Vikas Motors vs. Prithi Chand and Another, decided on 23.5.2008. This Court noticed the facts which are telling:- “It is apparent from the record produced before me that the plaintiff’s evidence was examined on 17.8.2004 and thereafter the matter was listed for defendants evidence on 9.11.2004. Some portion of the evidence of the defendants was examined. After about six effective dates for leading evidence were given, the 4 defendants moved an application under Section 65 of the Evidence Act. This application was allowed on 21.3.2006. Thereafter again the defendants were given numerous opportunities to lead evidence. Eleven more opportunities were taken but the evidence was not produced. Therefore on 29.4.2008 the learned trial Court while accepting the request of the defendants and adjourning the case to 6.5.2008 directed that the defendants shall take Dasti summons for service of the witnesses. … … … …” “It is apparent that the defendants did not even deem it proper to take Dasti summons for service of the witnesses. One of the appellants is alleged to be a finance company. There is no explanation as to why some employee of the Company could not have been deputed to ensure that the witnesses are served. The defendants have managed to prolong the proceedings for more than four years for leading their evidence and were given more than 17 effective dates to produce their evidence. Despite such indulgence shown, the defendants have failed to produce their evidence. It is absolutely clear that the defendants have been negligent in pursuing their case. No further indulgence can be shown to such a party.” 5 Learned counsel for the petitioner submits that the order passed by the learned trial Court directing the case to be placed before learned District Judge was without jurisdiction as once the Court held that it does not have the pecuniary jurisdiction, it was duty bound in law to have returned the plaint to the plaintiff for presentation before the proper Court. In-fact, shorn of all legalities the defendants seek retrial. This cannot be permitted. I have noticed in detail the order passed by this Court to show that the petitioners seek to manipulate the process of law under the veneer of jurisdiction urging inherent lack of jurisdiction vitiating the entire proceedings. This cannot be permitted under any circumstance. The petitioners cannot be permitted to invoke the jurisdiction of this Court under Article 227 of the Constitution of India to overreach the orders passed by this Court and the Supreme Court which have attained finality. The maxim, actus curiae neminem gravabit, meaning “an act of the Court shall prejudice no man”, is squarely attracted to this case. If the order of the trial Court sending the case to the Court of the learned District Judge was not in accordance with law, no fault could be attributed to the plaintiff. The defendants- petitioners adopted a speculative approach and waited till their application under Section 151 of the Code of Civil Procedure for leading further evidence was rejected by the learned District Judge to urge the illegality in the proceedings, which cannot be permitted. 6 In the facts and circumstances, I find no merit in these petitions which are accordingly dismissed. No interference is called for under Article 227 of the Constitution of India. There shall be no order as to costs. April 17, 2009 (Dev Darshan Sud) (aks) Judge.