Manish Kumar Aggarwal V. Union of India and another

CMP.M/1011/2017

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The case involves Manish Kumar Aggarwal, the plaintiff, who sought condonation of a delay of about four years and nine months in filing a Regular Second Appeal against the concurrent findings of the trial Court and First Appellate Court. The lower courts had rejected his suit for a perpetual prohibitory injunction against the defendants, who were allegedly interfering with his property. The trial court had, however, granted him a decree restraining the defendants from obstructing his use of a passage owned by the Municipal Council for access to his land. The plaintiff's delay was attributed to a belief that the legal precedents used in his case had attained finality, which was later found to be incorrect after a relevant High Court judgment in 2016. The defendants opposed the application, arguing that the plaintiff had accepted the impugned judgment and the delay was inordinate. The court dismissed the application, emphasizing that the legal position had not changed and the precedents cited by the plaintiff were not applicable.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 809065 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 14-05-2019
• Assessment Year: misc
• Other Referred Cases: State of H.P. Versus Chander Dev and Others, Chander Dev and Ors. Versus the State of Himachal Pradesh, Dhani Ram (deceased) & Ors. Versus State of H.P. & Ors., Asif Beg and Another Versus Estate Officer/Station Commander, Devi Chand Versus State, Dinesh Kumar Versus State of H.P. and others, Karamchand Prem Chand Pvt. Ltd. Versus Commissioner of Income Tax, Commissioner of Sales Tax, U.P. Versus M/s Auriaya Chamber of Commerce, Allahabad
• Laws Referred To: Public Premises (Eviction of Unauthorized Occupants) Act, 1971
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: LOKINDER THAKUR
• Assessee Lawyers: JYOTSNA DUA; CHARU BHATNAGAR
• Keywords: Condonation of delay; Eviction; Legal recourse; Trespassing; Perpetual prohibitory injunction
• Section: 9

Judgement Text

"IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) No. 1011 of 2017 Decided on: 14.05.2019 Manish Kumar Aggarwal …Applicant/plaintiff Versus Union of India and another …Respondents/defendants Coram The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes. For the Applicant/ Appellant/Plaintiff: Ms. Jyotsna Rewal Dua, Senior Advocate, with Ms.Charu Bhatnagar, Advocate. For the non­applicants/ respondents: Mr. Lokinder Paul Thakur, Advocate. Vivek Singh Thakur, Judge. (Oral) Present application has been filed by the applicant/appellant/plaintiff (hereinafter to be referred as plaintiff), for condonation of delay of about four years and nine months in filing the Regular Second Appeal against the 2 concurrent finding of the trial Court and First Appellate Court, whereby in the suit filed by the plaintiff, for passing the decree of perpetual prohibitory injunction, restraining the defendants from interfering, trespassing, damaging the suit property or obstructing its approach in illegal and unlawful manner, by claiming therein that he is owner in possession of the suit land and defendants have been causing interference in the suit land. Trial Court, after putting reliance on ratio of law laid down by Division Bench of this Court in case State of H.P. Versus Chander Dev and Others, reported in 2007 (2), Shimla Law Cases 7, had rejected the claim of the plaintiff for passing the decree for perpetual prohibitory injunction, but had passed a decree dated 29th June, 2011, in his favour, restraining the defendants permanently from obstructing the plaintiff from user of the passage owned by the Municipal Council, Nahan, for the purpose of egress and ingress of the suit land till he is evicted in accordance with law therefrom. 2. The impugned judgment, affirming judgment passed by the Civil Judge (Junior Division), Nahan on 29th June, 2011, was passed by learned District Judge on 4th June, 2012 and the 3 copy filed with the proposed Regular Second Appeal reflects that the same was applied on 27th June, 2017 and was attested on 28th June, 2017 and received by the plaintiff on 1st July, 2017. 3. It is claimed by the plaintiff that earlier he was under a bonafide belief that precedent referred in the impugned judgments had attained finality and therefore, he was not likely to be declared as owner of the land. However, on 20th June, 2017, when he visited the local office of the defendants at Nahan, for some settlement with defendants, he came to know about passing of judgment by this High Court on 20th June, 2016, in CWP No.3084 of 2015, wherein the identical issue involved therein, was decided in favour of the similar situated person like plaintiff, whereupon it came in the knowledge of the plaintiff that the legal position has changed in his favour and after becoming aware about change in the position, as enunciated in the judgment delivered in CWP No.3084 of 2015, he applied for copy of the impugned judgment and filed proposed Regular Second Appeal along with present application. 4. It is also case of the plaintiff that delay in challenging the impugned judgment was neither intentional nor willful, but under the bonafide belief regarding finality of the 4 previous legal position according to the precedents referred in the impugned judgment. But, now after knowing about the judgment passed in CWP No.3084 of 2015, it has come in the knowledge of the applicant that the law is otherwise than he was considering it. 5. The application has been opposed by the respondents/defendants, on the ground that the judgment proposed to be assailed in the Regular Second Appeal, was passed on 4th June, 2012, whereafter the plaintiff was sleeping over the matter and never assailed or intended to assail the same and the reasons assigned for assailing the same in the application do not constitute a sufficient cause, which prevented the plaintiff from filing the appeal in time and there is inordinate delay of four years and five months in preferring the appeal, which in the facts and circumstances of the present case, does not deserve to be condoned, particularly for the reason that the plaintiff himself admitted in the application that he had accepted the impugned judgment on 4th June, 2012. 6. I have heard learned counsel for the plaintiff/applicant and respondents/defendants. 5 7. The trial Court has rejected the claim of plaintiff on the basis of ratio of law laid down by the Division Bench of this Court in Chander Dev’s case (referred supra), which was assailed in the Apex Court and after allowing the SLP No.449 of 2008, the appeal was registered in the apex Court as Civil Appeal No.6887 of 2008 titled Chander Dev and Ors. Versus the State of Himachal Pradesh. In another case, involving similar issue therein, after allowing the SLP No.8101 of 2009, an appeal bearing Civil Appeal No.2665 of 2009 titled Dhani Ram (deceased) & Ors. Versus State of H.P. & Ors., was registered in the Apex Court and both the appeals i.e. Civil Appeal No.6887 of 2008 and Civil appeal No.2665 of 2009, were clubbed together. 8. As a matter of fact, both the appeals i.e. Civil Appeal No.6887 of 2008 and Civil appeal No.2665 of 2009, stand dismissed by the Apex Court vide order dated 11th January, 2017, holding that those appeals were devoid of any merit. Therefore, ratio of law laid down by the Division Bench of this Court in Chander Dev’s case (supra), has attained finality. 9. The applicant has relied upon the judgment dated 20th June, 2016 of the Division Bench of this Court passed in 6 CWP No.3084 of 2015, titled as Asif Beg and Another Versus Estate Officer/Station Commander, reported in Latest HLJ 2016 (HP) (DB) 833, whereby in para Nos.45, 47 and 48 thereof, considering pendency of the appeals i.e. Civil Appeal No.6887 of 2008 and Civil appeal No.2665 of 2009, in the Apex Court, it was considered that ratio of law laid down in Chander Dev’s case, has not attained finality and noticing two earlier conflicting judgments of the Single Benches of this Court, passed in Devi Chand Versus State reported in 1994 (4) S.L.J. 2926 and Dinesh Kumar Versus State of H.P. and others reported in 1994 (Suppl.) Shim. L.C. 385; wherein in Devi Chand’s case, learned Single Judge has held that operation of Section 104 (9) of the Act is applicable retrospectively and another learned Single Judge in Dinesh Kumar’s case, after observing that amendment is retrospective, has further held that intention of the legislature did not appear to take away the vested rights of the tenant; the Division Bench of this Court has referred the matter to the larger Bench. According to the applicant, the ratio of law laid down in Chander Dev’s case, has been reopened in CWP No.3084 of 2015 and is pending consideration before the larger bench of this 7 Court. All substantial questions of law filed with proposed appeal are also based on reference order passed in this Civil Writ Petition No.3084 of 2015. 10. From the perusal of the latest order dated 16th November, 2018, passed in CWP No.3084 of 2015, it is evident that keeping in view SLP No.8101 of 2009 and Civil Appeal No. 2665 of 2009, involving the question whether the proviso to Section 104 (9) of H.P. Tenancy and Land Reforms Act, 1972, is sub judice before the Apex Court, the Larger Bench has adjourned that case sine­die to await the decision of the Apex Court in the appeals pending before it, with liberty to the parties to move an application thereafter for listing of the case for deciding the issue, if any, left out for adjudication by the larger Bench. 11. Condonation of delay is being sought on the basis of reference order made in CWP No.3084 of 2015. The said reference was made after noticing pendency of Civil Appeal No.6887 of 2008 and Civil appeal No.2665 of 2009 before the Apex Court, wherein the parties were directed by the Apex Court to maintain status­quo. But, now both these appeals have been dismissed. Now, after dismissal of the Civil Appeal No.6887 of 8 2008 and Civil appeal No.2665 of 2009 by the Apex Court, fate of reference to the Larger Bench is writing on the wall. 12. The trial Court has decided the suit filed by the applicant in­consonance with judgment passed in Chander Dev’s case, which now has attained finality after dismissal of the appeals preferred against thereto. Therefore, there is no change in legal position, rather the position of law relied upon by the trial Court has been affirmed by the Apex Court. As there is no change in legal position, the judgments referred on behalf of the applicant in Karamchand Prem Chand Pvt. Ltd. Versus Commissioner of Income Tax reported in 1975 101 ITR 46 Guj and Commissioner of Sales Tax, U.P. Versus M/s Auriaya Chamber of Commerce, Allahabad, reported in (1986) 3 Supreme Court Cases 50, are not applicable. 13. There is another point, which is relevant to be brought on record. After passing of judgment dated 4th June, 2012, passed by learned District Judge, Sirmaur at Nahan, the concerned Authorities had resorted to the legal recourse for eviction of the applicant by invoking provisions of the Public Premises (Eviction of Unauthorized Occupants), Act, 1971 (in 9 short the Public Premises Act) and resultantly, applicant was ordered to vacate the premises in question on or before 20th July, 2013. This order was assailed by the applicant before the Appellate Authority, i.e. learned Additional District Judge, Sirmaur at Nahan, by preferring an appeal under Section 9 of the Public Premises Act. The said appeal was dismissed vide judgment dated 25th November, 2013, which was assailed by the applicant by filing Civil Writ Petition No.9646 of 2013, titled as Manish Kumar Aggarwal Versus Union of India. The Division Bench of this High Court has dismissed the said writ petition on 12th April, 2017 and present application along with proposed appeal has been filed on 12th July, 2017. The order of eviction passed under Public Premises Act, has also attained finality. 14. In view of aforesaid facts and circumstances, I find that there is no sufficient cause made out for condonation of delay in filing the appeal. Accordingly, present application is dismissed. (Vivek Singh Thakur) Judge May 14th, 2019. ( rishi ) "