Darshan Lal and Others Vs. Comrade Daya Singh and Others

Darshan Lal and Others vs Comrade Daya Singh and Others

Type Court Judgment Court Punjab and Haryana Decided Aug 03, 1989

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Citation: sooperkanoon.com/611402
Court: Punjab and Haryana High Court
Judge: G.R. Majithia, J.
Decided On: Aug 03, 1989
Case Number: S.A.O. No. 82 of 1987
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Civil
Acts & sections: Code of Civil Procedure (CPC), 1908 - Sections 96 - Order 41, Rules 25 and 27

Parties & Advocates

Appellant / Petitioner

Darshan Lal and Others

Advocate G.S. Cheema, Adv.

Respondent

Comrade Daya Singh and Others

Advocate H.S. Sangha, Adv.

Legal References

Acts: Code of Civil Procedure (CPC), 1908 - Sections 96 - Order 41, Rules 25 and 27
Reported In: AIR1990P& H93; (1990)97PLR56

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - ..........yards out of khasra nos. 791, 794 and 795 which was negatived by the trial judge on evidence. before the first appellate court, an application for amendment of written statement was made on the ground that on the date of filing of the written statement, they were not clear that they were in possession of khasra no. 795 or 791 but they were at any rate in possession of khasra no. 794 and the property in dispute fell in khasra no. 794, which is contrary to the earlier plea. the amendment on the facr of it was lacking in bona fide and a deliberate attempt to delay the proceedings. the plot in dispute as found by the trial judge on appreciation of the voluminous documentary evidence falls in khasra no. 791. in fact, it amounted to withdrawal of the admission made in the earlier written statement. admission made by a party can be withdrawn or can be explained provided cogent material is adduced before the court. in the instant case, there was no material. to the contrary, the plea sought to be raised by way of amendment of the written statement was vague and imaginary and it ought not to have been allowed.4. the order of the first appellate court is set aside. the case is remitted to the district judge, ludhiana with the directions to dispose of the appeal expeditiously within one month from the date the parties put in appearance before him. the parties through their counsel arc directed to appear before the district judge, ludhiana, on september 25, 1989. costs will abide by event.5. order accordingly.

Full Judgment

1. This/appeal is directed against the order of the first appellate Court remitting the case for retrial after allowing amendment of the written statement.

2. The petitioners (for short the 'plaintiffs') filed a suit for permanent injunction restraining the respondents (for short the 'defendants') from interfering in their peaceful possession on the disputed plot. During the pendency of the suit, the plaintiffs were forcibly dispossessed necessitating the amendment of the plaint which was allowed, the relief in the plaint was confined for decree for possession. The learned trial Judge on appraisal of the entire evidence found that the plaintiffs were the owners of the plot composed in Khasra No. 791 and decreed the suit. The defendants being aggrieved by it filed first appeal which was entrusted for disposal to Shri S.S. Kanwal, Additional District Judge, Ludhiana. During the pendency of the first appeal, applications for amendment of the written statement, appointment of a local commissioner and for leading additional evidence were filed. The appellate Judge allowed the application for amendment of the written statement set aside the judgment and decree of the trial Judge and after so doing remitted the case to the trial Judge for retrial after framing issues and allowing the parties to lead evidence. The applications for leading additional evidence and for appointment of local commissioner were dismissed in view of the order passed on the application for amendment of the written statement.

3. It is unfortunate that the Additional District Judge did not understand the elementary principles of law. Even if he hadfound that there was legal justification forallowing the amendment of the written statement, he could have directed the defendants to lead such evidence before it as they thought fit and disposed of the appeal on merits or else he could have allowed the amendment of the written statement, framed additional issue or issues arising from the pleading of the parties and after so doing ask for a report from the trial Judge under Order XLI, Rule 25 of the Code of Civil Procedure. Reversing the well reasoned judgment of the trial Court without assigning any reasons indicates lack of applicability of judicial mind or a deliberate attempt to set aside the judgment and decreeof the trial court. On merits, there was no justification for allowing the amendmentof the written statement. The plaintiffs came to the Court on the ground that they were the owners of plot measuring 281 square yards comprised in Khasra No. 791. The defendants controverted the allegations made in the plaint and pleaded that Khasra No. 791 belonged to the Custodian and was owned by the Central Government and they were in possession of the same since 1970 and in 1973 regular allotment was made in their favour. Their specific defence was that they were in possession of land measuring 395 square yards out of Khasra Nos. 791, 794 and 795 which was negatived by the trial Judge on evidence. Before the first appellate Court, an application for amendment of written statement was made on the ground that on the date of filing of the written statement, they were not clear that they were in possession of Khasra No. 795 or 791 but they were at any rate in possession of Khasra No. 794 and the property in dispute fell in Khasra No. 794, which is contrary to the earlier plea. The amendment on the facr of it was lacking in bona fide and a deliberate attempt to delay the proceedings. The plot in dispute as found by the trial Judge on appreciation of the voluminous documentary evidence falls in Khasra No. 791. In fact, it amounted to withdrawal of the admission made in the earlier written statement. Admission made by a party can be withdrawn or can be explained provided cogent material is adduced before the Court. In the instant case, there was no material. To the contrary, the plea sought to be raised by way of amendment of the written statement was vague and imaginary and it ought not to have been allowed.

4. The order of the first appellate Court is set aside. The case is remitted to the District Judge, Ludhiana with the directions to dispose of the appeal expeditiously within one month from the date the parties put in appearance before him. The parties through their counsel arc directed to appear before the District Judge, Ludhiana, on September 25, 1989. Costs will abide by event.

5. Order accordingly.

Same Court & Year Punjab and Haryana · 1989 Same Parties Darshan Lal and Others vs Comrade Daya Singh and Others Same Subject Civil Same Judge G.R. Majithia, J. Acts & Sections Code of Civil Procedure (CPC), 1908 - Sections 96 - Order 41,...

Civil