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JAILA RAM versus GRAM PANCHAYAT VILLAGE BAHADURPUR, TEHSI

High Court of Punjab and Haryana, Chandigarh

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Jaila Ram v. Gram Panchayat Village Bahadurpur, Tehsi - CR-159-2005 [2006] RD-P&H 9287 (26 October 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

C. R. No. 159 of 2005

Date of decision November 1, 2006

Jaila Ram

.......Petitioner

Versus

Gram Panchayat Village Bahadurpur, Tehsil Phillaur and others ........Respondents

CORAM: HON'BLE MR. JUSTICE VINEY MITTAL
Present:- Sh. O.P. Nagpal, Advocate

for the petitioner.

Sh. Satinder Khanna, Advocate

for the respondents.

****

Viney Mittal, J (Oral)

The plaintiff is a petitioner before this Court. He filed a suit for permanent injunction for restraining the defendants from disturbing and from interfering into the Hadda Rori of the petitioner in the land measuring 10 Marlas as detailed in the plaint. Along with the suit, the plaintiff has also filed application under Order 39 rules 1 and 2 of the Code of Civil Procedure and prayed for ad -interim- injunction.

The defendants appeared before the trial Court and contested the application for ad-interim-injunction. They also raised an objection with regard to the maintainability of the suit on the ground that the controversy between the parties stood already finally settled vide an earlier judgment dated April 20,1998.

The learned trial Judge had rejected the prayer made by the plaintiff for ad-interim-injunction and consequently dismissed his application filed under Order 39 Rules 1 and 2 of Code of Civil Procedure.

The defendant took up the matter in an appeal before the Appellate Court.

It appears that on August 11, 2004, when the aforesaid appeal was pending before the learned first Appellate Court, the counsel for the plaintiff-appellant made a statement to the effect that he had no objection if the appeal is disposed of as per order dated April 20, 1998 and in view of the statement made by learned counsel for the defendants, a prayer was made to dismiss his appeal as withdrawn.

On the aforesaid statement made by learned counsel for the plaintiff-appellant the learned Additional District Judge passed the following order:-

"Present: Counsel for the parties.

Counsel for the parties suffered statement.

In view of their statements, coupled with the order dated 20.4.1998, the appellant is permitted to collect the dead animals of village Bahadurpur teh. Phillaur in district Jalandhar, in the disputed premises for the purpose of removing their skin only. However, he would not boil the fat of animals for the purpose of preparing beef tallow. The respondent will not disturb or interfere in the aforesaid work of the appellant. The parties shall remain bound by their statement made through respective counsel. In view of the statement of counsel for the appellant, the appeal stands dismissed as withdrawn. Decree sheet be prepared. File be consigned to the record room. File of the lower court be sent back for 17.8.04. Parties through their counsel are directed to appear before the lower court on the date fixed."

The plaintiff has now approached this Court through the present petition under Article 227 of the Constitution of India challenging the order of learned trial appellate Court and for issuance of directions to it for deciding the appeal on merits.

Sh. O.P. Nagpal, learned counsel appearing on behalf of the plaintiff-petitioner has argued that the learned Additional District Judge, while hearing the appeal of the plaintiff-appellant was only seized of a miscellaneous appeal having arisen out of order passed on the application filed under Order 39 rules 1 and 2 and as such, the controversy involved in the main suit which was yet pending before the trial Judge, could not have been finally adjudicated. In these circumstances, it has been pointed out that the directions issued by the learned Additional District Judge,Jalandhar amount to disposal of the main suit. In this regard, the learned counsel has also made a reference to the directions contained in the order of the learned Additional District Judge whereby a decree sheet has also been ordered to be prepared.

On the other hand, Sh. Satinder Khanna, learned counsel appearing on behalf of the defendant-respondents has contended that the aforesaid directions with regard to preparation of decree sheet seem to have been wrongly incorporated inasmuch as further directions in the impugned order show that the parties have been directed to appear before the trial Judge and the trial Court record has also been directed to be sent back.

I have duly considered the contentions of the learned counsel for the parties. In my considered view the order passed by the learned Additional District Judge, Jalandhar does not merely amount to an order permitting the appellants Jaila Ram to withdraw the appeal but amounts to an order passed on the basis of a compromise. The order on the basis of a compromise can only be passed if provisions of Order 23 rule 3 of the Code of Ciivl Procedure had been complied with and a written compromise deed in accordance with the said provisions had been placed on record. However, the plaintiff-appellant was always free to withdraw the appeal by making a simple statement to that effect. From the perusal of the impugned order passed by Additional District Judge, I find that the aforesaid order is not an order simplicitor permitting plaintiff-appellant to withdraw the appeal. The said order actually amounts to disposing of the controversy on the basis of some compromise, although provisions of Order 23 Rule 3 CPC were not complied with. It appears that the counsel for the parties made a statement on the basis of the earlier decision dated April 20,1998 but that was a matter which was yet to be considered by the trial Judge. The maintainability of the suit is also one of the questions which is yet to be gone into by the trial Judge.

In this view of the matter, without going into the various pleas raised on merits of the controversy by the parties, I allow the present revision petition and set aside the order dated August 11, 2004 passed by learned Additional District Judge, Jalandhar. The appeal filed by the petitioner-Jaila Ram is restored back to its original number and shall be decided by the learned Appellate Court on the merits of the controversy in accordance with law.

Before parting with this order, it is made clear that nothing stated in the present order shall influence the Appellate Court or the Trial Court with regard to the merits of the case.

Parties through their counsel are directed to appear before the learned Additional District Judge, Jalandhar on December 4, 2006.

Copy of the order be given dasti on payment of usual charges.

(VINEY MITTAL)

JUDGE

November 1, 2006

archana


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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