RSA No.858 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.858 of 2010 (O&M) Date of decision: 12.10.2010 Rajinder Kumar and another ......Appellant(s) Versus Satish Garg ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. IPS Doabia, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession was decreed. In brief, the case of the plaintiff-respondent is that one Ripudaman Kaur Aulakh was the allottee of the suit property vide allotment letter dated 5.6.1965. After her death, the suit property was inherited by the plaintiff-Kumar Mohan Singh Aulakh and his brother Dr. Jagat Mohan Singh Aulakh and ownership was changed in their names vide memo dated 6.7.2000 issued by the Estate Officer, HUDA. The plaintiff constructed a small dwelling unit and a boundary wall and installed a gate on the suit premises. The appellants had unauthorizedly entered into the premises owned by the plaintiff by breaking open the locks and had started living in the suit property. The complaint in this regard was also filed on 31.8.2000. An FIR No.721 dated 25.11.2002 was registered against the appellants with the intervention of this Court. Request of the plaintiff to the appellants to vacate the suit premises carried no fruit. Accordingly, the suit was filed. Upon notice, the appellants filed written statement raising RSA No.858 of 2010 (O&M) 2 various preliminary objections. It was pleaded that the possession of the appellants was in continuous, uninterrupted and without any interference from any side in any manner whatsoever. According to them, they were put into possession by one Avtar Singh, who was owner in possession of the suit property and the averments made in the plaint were denied being false. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether plaintiff is entitled for a decree of possession in his favour and against the defendant as prayed for? OPP 2. Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP 3. Whether suit is not maintainable in the present form? 4. Whether plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the plaintiff has concealed the material facts from this Court? OPD 7. Whether suit has not been properly valued? OPD 8. Relief.” During the pendency of the suit, the respondent was substituted in place of the plaintiff being subsequent purchaser of the suit property vide order dated 26.2.2008 of the trial Court. After hearing learned counsel for the parties and perusing the evidence placed on record, the trial Court decided all the issues in favour RSA No.858 of 2010 (O&M) 3 of the plaintiff and accordingly, the suit was decreed with costs. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree 2.12.2009. While dismissing the appeal, the Lower Appellate Court found that there was enough documentary evidence on the basis of which the plaintiff-respondent was held to be owner of the suit property and there was no evidence to prove that Avtar Singh, as alleged by the appellants, was the owner of the suit property and thus, the appellants were neither owners nor tenants but were trespassers in the suit property and therefore, the plaintiff-respondent had a right to seek possession of the suit property. Still not satisfied, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below. In support of his case, learned counsel for the appellants has vehemently argued that plaint and the accompanying affidavit filed by the plaintiff-respondent were liable to be rejected at the very outset as the same were contrary to the provisions of Order 19 Rule 3 CPC. Elaborating further his argument, learned counsel for the appellants has submitted that verification of the plaint as well affidavit did not meet the requirement of Order 19 Rule 3 CPC. Counsel for the appellant has placed reliance on a judgment of this Court cited as Inder Pal Dua and another v. M/s Yash Garg & Co. 2002 (3) PLR 238. Learned counsel for the appellants has further argued that the respondent who had become the owner of the suit property on the basis of subsequent purchase, could have filed a suit instantly or could have been impleaded as independent necessary party. However, the Courts below have deleted the name of plaintiff, Kumar Mohan Singh Aulakh while ignoring the most important aspect of law and thus, the suit deserved to be dismissed. RSA No.858 of 2010 (O&M) 4 On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: i) Whether or not the plaint and the accompanying affidavit is in violation of the provisions of Order 19 Rule 3 CPC as held by this Hon'b;e Court in 2002(3) PLR 238? ii) Whether or not the affidavits adduced in evidence are violative of Order 19 CPC as held by this Court in 2002 (3) PLR 238. iii) Whether or not in view of the defective pleadings and evidence on affidavit reliance could be placed on the contents therein by the Courts below? iv) Whether or not the plaintiffs respondents was able to set up an independent case for the prayers so made in the plaint? v) Whether or not the said suit have been rendered infructuous on account of sale by Kumar Mohan Singh Aulakh to Satish Garg? vi) Whether or not Satish Garg had an independent cause of action to file a fresh suit? I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. The arguments raised by the learned counsel for the appellants are liable to be rejected in view of the fact that no such argument regarding the defective pleadings was raised by the appellants before the trial Court. Even no such objection was raised in the written statement. Neither any issue was claimed. Thus, in view of the judgment RSA No.858 of 2010 (O&M) 5 of Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal and another 2008 JT (13) SC 255, the argument raised by the appellant in this regard does not arise at all. Not only this, the aforesaid provisions of Order 19 Rule 3 CPC are directory in nature and could have been rectified if pointed out at the right stage. Other argument of the appellants that deletion of name of original plaintiff is fatal to the case, is also without any substance as the respondent has stepped into the shoes of the plaintiff by virtue of order dated 26.2.2008 passed under Order 22 Rule 10 CPC which permits the Court to substitute the name of the assignee in place of original plaintiff. In spite of the fact that counsel for the appellants has raised this argument, the same could not be substantiated by him in any manner. No other point was argued by the learned counsel for the appellants. Thus, for the reasons as recorded above, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. October 12, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.858 of 2010 (O&M) 6