IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Sultan Vs. Aam Janta (General Public) of village Bhankari and ors. S.B. CIVIL SECOND APPEAL NO.689/2009. UNDER SECTION 100 OF THE CPC. DATE OF JUDGMENT: 21st November, 2009. HON'BLE MR.JUSTICE S.P.PATHAK Mr. Aditya Narain Sharma for the appellant. BY THE COURT:
This second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 13.8.2009 passed by the Additional District Judge (Fast Track) Bandikui, Head Quarter at Dausa District Dausa in Civil Appeal no. 8/2007 (32/2004) whereby the judgment and decree dated 5.8.2004 passed by the Civil Judge (Senior Division), Dausa in Civil Suit No.91/2003 has been confirmed.
Briefly stated the facts for the disposal of the present second appeal are that the appellant was defendant in the suit filed by the respondents. In the suit a prayer was made by the plaintiff to grant permanent injunction and to restrain the defendant from creating hindrance in the use of the way which is passing through khasra nos. 274, 308 and 310 situated in village Bhankari, Tehsil and District Dausa. The learned trial court proceeded with the trial and on 11.12.2003 drew exparte proceedings against defendant nos. 2, 4 and 5 and also closed the right to file written statement in relation to defendant nos.1 and 3 in the suit as more than 90 days time was taken by the defendant in filing the written statement. On 7.1.2004, exparte proceedings were ordered against defendant nos. 1 and 3 as they did not appear. The matter thereafter was fixed for recording evidence of the plaintiff. The plaintiff examined six witnesses and tendered three documents in evidence. After hearing the plaintiff, the trial court decreed the suit vide its judgment and decree dated 5.8.2004 and issued permanent injunction in relation to the disputed passage to the effect that in the map the way shown shall be used by the plaintiffs and other villagers and further the defendant in the suit shall not create any hindrance in the peaceful use of the passage. The appellant having felt aggrieved preferred regular appeal which was decided by the Additional District Judge (Fast Track), Bandikui Head-quarter Dausa on 13.8.2009. The appellate court dismissed the appeal and confirmed the judgment and decree passed by the trial court. Hence, the present second appeal has been filed.
The main contention of the learned counsel for the appellant is that the suit was one under Order 1 Rule 8 CPC and the court has not followed the prescribed procedure, therefore, the judgment and decree passed by the courts below are liable to be set aside. It is also the contention of the learned counsel that the trial court has not afforded proper opportunity as his lawyer did not inform him about the proceedings of the court, therefore, the appellant could not file written statement in time and could not adduce the evidence. In support of his submissions, learned counsel for the appellant has placed reliance on the decisions in the case of Kusasan Samal and others Vs. Chandramani Pradhan (dead)- AIR 2003 Orissa 157, The Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and others etc. Vs. Nattamai K.S. Ellappa Mudaliar and others- AIR 1987 Madras 187, Radhamohan Malia and another Vs. Basudeb Khuntia and others- AIR 1981 Orissa 16, Sri Ram Krishna Mission and another Vs. Paramanand and others- AIR 1977 Allahabad 421 and Smt. Munni Devi and others Vs. Satgur Dayal Tandon and others- AIR 1973 Allahabad 281.
I have considered the submissions made before me.
It is to be seen that Panchas of village and other persons filed the suit for permanent injunction for the reason that the defendant-appellant was making hindrance in the use of the way which passes through the land in khasra nos. 274, 308 and 310, village Bhankari Tehsil & District Dausa. The appellant’s contention is that the land belongs to him and there was no right of way available to the respondent-plaintiffs and there was no compliance of the provisions of Order 1 Rule 8 CPC. A perusal of the impugned judgment and decree passed by the courts below reveals that the learned appellate court found in the facts and circumstances of the case the plaintiff and other villagers had the right to use the way and in this regard witnesses of the plaintiff stated that the way was being used by the respondent, other villagers and their ancestors for last 100 years. Some documents have also been produced. It further appears that the learned appellate court found that in all 24 adjournments were given to file written statement but the written statement was not filed, therefore, proceedings were drawn exparte. It has also been the finding of the learned appellate court that on behalf of the villagers the suit was filed by the Panchas and other persons those who were using the disputed way to approach their fields. The suit was filed on 8.6.1999 and was registered. Thereafter, summons were issued to the defendants in the suit, therefore, there was implied consent of the court in relation to filing of the suit in the representative capacity. It has also been the finding of the learned appellate court that though summons were not issued to the public at large but at the same time public at large was represented and by not issuing any notice, no prejudice of what-so-ever nature has been caused to the appellant.
In the present matter, after examining the submissions of the learned counsel, what I find is that the suit was filed in the year 1999. The suit was filed by Panchas and other persons claiming their right to use the disputed passage which was being used for last 100 years by the plaintiff and other persons. It is correct that no notice as required was issued under the provisions of Order 1 Rule 8 CPC but at the same time looking to the nature of the suit and representation made on behalf of the public at large and also by individuals and finding that no prejudice of what-so-ever nature has been caused to the defendant, after more than a decade, the judgment and decree passed by the two courts below is not required to be set aside on this technical point as no purpose would be served in remitting the case back to the trial court.
In view of the peculiar facts and circumstances of the case in as much as that the way has been available to the plaintiff as well as the villagers and sufficient amount of evidence has been brought on record to prove this aspect of the matter. It further appears that more than required opportunities to the defendant-appellant were given but he failed to file the written statement , exparte proceedings were drawn.
In view of peculiar facts and circumstances of the case as discussed here-in-above, the authorities cited by the learned counsel are of no help to him. The appeal being devoid of merit is liable to be dismissed.
In the result, this second appeal stands dismissed.
(S.P.PATHAK) J.
bbl